e8vk
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 23, 2010
AMERICAN INTERNATIONAL GROUP, INC.
(Exact name of registrant as specified in its charter)
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Delaware
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1-8787
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13-2592361 |
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(State or other jurisdiction
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(Commission File Number)
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(IRS Employer |
of incorporation)
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Identification No.) |
180 Maiden Lane
New York, New York 10038
(Address of principal executive offices)
Registrants telephone number, including area code: (212) 770-7000
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e4(c) under the Exchange Act (17 CFR
240.13e-4(c)) |
Section 1 Registrants Business and Operations
Item 1.01. Entry into a Material Definitive Agreement.
On December 23, 2010, American International Group, Inc. (AIG) entered into (i) a $1,500,000,000
Three-Year Credit Agreement (the Three-Year Credit Agreement) among AIG, the subsidiary borrowers
party thereto, the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent;
and (ii) a $1,500,000,000 364-Day Credit Agreement (the 364-Day Credit Agreement and together
with the Three-Year Credit Agreement, the AIG Credit Agreements) among AIG, the subsidiary
borrowers party thereto, the lenders party thereto, and JPMorgan Chase Bank, N.A., as
Administrative Agent. In addition, on the same date, Chartis, Inc., a wholly-owned subsidiary of
AIG (Chartis) entered into a $1,300,000,000 Letter of Credit and Reimbursement Agreement among
Chartis, the lenders party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, and each
Several L/C Agent Party thereto (the Letter of Credit Agreement and, together with the AIG Credit
Agreements, the New Agreements).
The obligations of the lenders under the New Agreements to make loans and other extensions of
credit, as well as the related effectiveness of most of the covenants binding on AIG, Chartis and
certain of their subsidiaries, are subject to the satisfaction by AIG or Chartis, as the case may
be, of certain conditions, which must be satisfied no later than March 31, 2011. These conditions
include, among other things, repayment of all amounts owing under the Credit Agreement, dated as of
September 22, 2008 (as amended, the FRBNY Credit Facility), with the Federal Reserve Bank of New
York (FRBNY), termination of the FRBNY Credit Facility and release of all liens under the
Guarantee and Pledge Agreement, dated as of September 22, 2008 between AIG, certain subsidiaries of
AIG and the FRBNY.
The New Agreements require AIG or Chartis (as applicable) to maintain a specified minimum net worth
and in the case of Chartis, a minimum statutory surplus, and subject AIG to a limit on total debt,
in each case subject to the limitations and exceptions contained in the relevant agreement. In
addition, the New Agreements contain certain customary affirmative and negative covenants,
including limitations with respect to incurrence of certain types of indebtedness or liens, certain
dispositions, entry into certain restrictive agreements and transactions with affiliates, and
certain fundamental changes.
Amounts due under the New Agreements may be accelerated upon an event of default, as defined in
the New Agreements, such as failure to pay amounts owed thereunder when due, breach of a covenant,
material inaccuracy of a representation or occurrence of bankruptcy, subject to cure periods (if
applicable) and if not otherwise waived.
The lenders and the agents (and their respective subsidiaries or affiliates) under the New
Agreements have in the past provided, and may in the future provide, investment banking,
underwriting, lending, commercial banking, trust and other advisory services to AIG, its
subsidiaries or affiliates. These parties have received, and may in the future receive, customary
compensation from AIG or its subsidiaries or affiliates for such services.
The foregoing description of the New Agreements is
not complete and is qualified in its entirety by
reference to the Three-Year Credit Agreement, which is filed as Exhibit 10.1 hereto, the
364-Day Credit Agreement, which is filed as Exhibit 10.2 hereto, and the Letter of Credit
Agreement, which is filed as Exhibit 10.3 hereto, all of which are incorporated herein by
reference.
Section 9 Financial Statements and Exhibits
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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10.1 |
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Three-Year Credit Agreement, dated as of December 23, 2010, among
AIG, the subsidiary borrowers party thereto, the lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. |
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10.2 |
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364-Day Credit Agreement, dated as of December 23, 2010, among AIG,
the subsidiary borrowers party thereto, the lenders party thereto,
and JPMorgan Chase Bank, N.A., as Administrative Agent. |
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10.3 |
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Letter of Credit and Reimbursement Agreement, dated as of December
23, 2010 among Chartis, the lenders party thereto, JPMorgan Chase
Bank, N.A., as Administrative Agent, and each Several L/C Agent Party
thereto. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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AMERICAN INTERNATIONAL GROUP, INC.
(Registrant)
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Date: December 23, 2010 |
By: |
/s/ Kathleen E. Shannon
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Name: |
Kathleen E. Shannon |
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Title: |
Senior Vice President and Deputy General Counsel |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
10.1
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Three-Year Credit Agreement, dated as of December 23, 2010,
among AIG, the subsidiary borrowers party thereto, the lenders
party thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent. |
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10.2
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364-Day Credit Agreement, dated as of December 23, 2010, among
AIG, the subsidiary borrowers party thereto, the lenders party
thereto, and JPMorgan Chase Bank, N.A., as Administrative
Agent. |
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10.3
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Letter of Credit and Reimbursement Agreement, dated as of
December 23, 2010 among Chartis, the lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent, and each
Several L/C Agent Party thereto. |
exv10w1
EXHIBIT 10.1
THREE-YEAR CREDIT AGREEMENT
dated as of
December 23, 2010
among
AMERICAN INTERNATIONAL GROUP, INC.,
The Subsidiary Borrowers Party Hereto,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.
and
CITIBANK, N.A.,
as Co-Syndication Agents
BARCLAYS BANK PLC,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
DEUTSCHE BANK SECURITIES INC.,
GOLDMAN SACHS BANK USA,
MORGAN STANLEY SENIOR FUNDING, INC.,
NOMURA INTERNATIONAL PLC,
THE ROYAL BANK OF SCOTLAND PLC,
UBS SECURITIES LLC
and
WELLS FARGO BANK, N.A.
as Co-Documentation Agents
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.01. Defined Terms |
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1 |
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SECTION 1.02. Terms Generally |
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22 |
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SECTION 1.03. Accounting Terms and Determinations |
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23 |
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ARTICLE II THE CREDITS |
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23 |
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SECTION 2.01. Commitments |
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23 |
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SECTION 2.02. Loans and Borrowings |
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23 |
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SECTION 2.03. Requests for Borrowings |
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24 |
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SECTION 2.04. Funding of Borrowings |
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24 |
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SECTION 2.05. Interest Elections |
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25 |
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SECTION 2.06. Termination and Reduction of Commitments |
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27 |
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SECTION 2.07. Repayment of Loans; Evidence of Debt |
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27 |
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SECTION 2.08. Prepayment of Loans |
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28 |
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SECTION 2.09. Fees |
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28 |
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SECTION 2.10. Interest |
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29 |
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SECTION 2.11. Alternate Rate of Interest |
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30 |
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SECTION 2.12. Increased Costs |
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30 |
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SECTION 2.13. Break Funding Payments |
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31 |
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SECTION 2.14. Taxes |
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32 |
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SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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35 |
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SECTION 2.16. Mitigation Obligations; Replacement of Lenders |
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37 |
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SECTION 2.17. Increase in Commitments |
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38 |
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SECTION 2.18. Defaulting Lenders |
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39 |
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SECTION 2.19. Designation of Subsidiary Borrowers |
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39 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES |
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41 |
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SECTION 3.01. Organization; Powers |
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SECTION 3.02. Authorization; Enforceability |
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41 |
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SECTION 3.03. Governmental Authorizations |
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41 |
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SECTION 3.04. No Contravention |
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SECTION 3.05. Financial Statements; No Material Adverse Change |
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42 |
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SECTION 3.06. Properties |
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42 |
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SECTION 3.07. Litigation and Environmental Matters |
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42 |
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SECTION 3.08. Compliance with Laws |
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43 |
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SECTION 3.09. No Default |
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43 |
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SECTION 3.10. Investment Company Status |
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43 |
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SECTION 3.11. Taxes |
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43 |
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SECTION 3.12. ERISA |
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SECTION 3.13. Disclosure |
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44 |
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SECTION 3.14. Margin Regulations |
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44 |
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SECTION 3.15. Certain Representations by Subsidiary Borrowers |
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44 |
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SECTION 3.16. Sanctioned Persons |
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ARTICLE IV CONDITIONS |
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45 |
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SECTION 4.01. Effective Date |
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SECTION 4.02. Closing Date |
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SECTION 4.03. Each Credit Event |
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48 |
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ARTICLE V AFFIRMATIVE COVENANTS |
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SECTION 5.01. Financial Statements and Other Information |
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SECTION 5.02. Notices of Material Events |
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SECTION 5.03. Existence; Conduct of Business |
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51 |
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SECTION 5.04. Payment of Obligations |
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51 |
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SECTION 5.05. Maintenance of Properties |
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51 |
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SECTION 5.06. Books and Records |
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51 |
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SECTION 5.07. Inspection Rights |
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SECTION 5.08. Compliance with Laws and Contractual Obligations |
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52 |
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SECTION 5.09. Insurance |
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SECTION 5.10. Use of Proceeds |
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52 |
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ARTICLE VI NEGATIVE COVENANTS |
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SECTION 6.01. Priority Indebtedness |
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SECTION 6.02. Liens |
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55 |
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SECTION 6.03. Fundamental Changes |
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57 |
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SECTION 6.04. Lines of Business |
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57 |
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SECTION 6.05. Dispositions |
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57 |
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SECTION 6.06. Transactions with Affiliates |
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58 |
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SECTION 6.07. Certain Restrictive Agreements |
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58 |
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SECTION 6.08. Fiscal Year |
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59 |
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SECTION 6.09. Financial Covenants |
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59 |
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ARTICLE VII EVENTS OF DEFAULT |
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59 |
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ARTICLE VIII ADMINISTRATIVE AGENT |
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62 |
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ARTICLE IX MISCELLANEOUS |
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65 |
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SECTION 9.01. Notices |
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65 |
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SECTION 9.02. Waivers; Amendments |
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65 |
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SECTION 9.03. Expenses; Indemnity; Damage Waiver |
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66 |
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SECTION 9.04. Successors and Assigns |
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68 |
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SECTION 9.05. Survival |
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71 |
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SECTION 9.06. Counterparts; Integration; Effectiveness |
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71 |
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SECTION 9.07. Severability |
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71 |
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SECTION 9.08. Payments Set Aside |
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72 |
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SECTION 9.09. Right of Setoff |
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72 |
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SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process |
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72 |
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SECTION 9.11. WAIVER OF JURY TRIAL |
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73 |
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SECTION 9.12. Headings |
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73 |
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SECTION 9.13. Confidentiality |
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73 |
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SECTION 9.14. USA PATRIOT Act |
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75 |
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SECTION 9.15. No Advisory or Fiduciary Relationships |
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75 |
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ARTICLE X GUARANTEE |
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75 |
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SECTION 10.01. Guarantee |
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75 |
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SECTION 10.02. Obligations Unconditional |
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76 |
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SECTION 10.03. Reinstatement |
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76 |
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SECTION 10.04. Subrogation |
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77 |
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SECTION 10.05. Remedies |
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77 |
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SECTION 10.06. Continuing Guarantee |
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77 |
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SCHEDULES
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SCHEDULE 2.01
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Commitments |
SCHEDULE 2.01A
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Existing Operating Indebtedness |
SCHEDULE 4.02(f)
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Index Debt Ratings |
SCHEDULE 9.01
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Notice Information |
EXHIBITS
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EXHIBIT A
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Form of Assignment and Assumption |
EXHIBIT B-1
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Form of Subsidiary Borrower Designation |
EXHIBIT B-2
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Form of Subsidiary Borrower Termination Notice |
EXHIBIT C
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Form of Promissory Note |
EXHIBIT D
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Forms of U.S. Tax Certificates |
- iv -
THREE-YEAR CREDIT AGREEMENT dated as of December 23, 2010 among AMERICAN INTERNATIONAL GROUP,
INC., the SUBSIDIARY BORROWERS party hereto, the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
The Company has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein. The parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the
meanings specified below:
ABR, 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 Alternate Base Rate.
Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMCB, in its capacity as administrative agent for the
Lenders hereunder.
Administrative Agents Office means the Administrative Agents address as set forth
on Schedule 9.01, or such other address as the Administrative Agent may from time to time notify
the Company and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, when used 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; provided that neither Federal Reserve Bank
of New York nor United States Department of the Treasury shall be deemed to be an Affiliate of any
Loan Party for purposes of this Agreement.
Agents means each of the Administrative Agent and the Syndication Agents.
Agreement Value means, for each Swap Contract, on any date of determination, the
maximum aggregate amount (giving effect to any netting agreements and netting amounts arising out
of intercompany Swap Contracts) that the Company or any Subsidiary would be required to pay if such
Swap Contract were terminated on such date.
Three-Year Credit Agreement
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AIG FP means AIG Financial Products Corp.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 0.50% and (c) the Adjusted LIBO Rate for a one month Interest Period (the
Relevant LIBO Rate) on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1.00%; provided that, for avoidance of doubt, the
Relevant LIBO Rate for any day shall be based on the rate appearing on Reuters Page LIBOR01 (or on
any successor or substitute page thereof, or any successor service, providing quotations of
interest rates applicable to Dollar deposits in the London interbank market comparable to those
currently provided on such page, as determined by the Administrative Agent from time to time) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Relevant LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Relevant LIBO Rate, respectively.
Applicable Fee Rate means, for any day, a percentage per annum determined by
reference to the Index Debt Ratings applicable on such day as set forth below:
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Applicable |
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Ticking Fee Rate/ Commitment |
Index Debt Ratings |
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Fee Rate |
Category 1 |
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0.15 |
% |
≥ AA- / Aa3 |
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Category 2 |
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0.20 |
% |
A+ / A1 |
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Category 3 |
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0.25 |
% |
A / A2 |
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Category 4 |
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0.30 |
% |
A- / A3 |
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Category 5 |
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0.375 |
% |
BBB+ / Baa1 |
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Category 6 |
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0.50 |
% |
≤
BBB / Baa2 |
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or unrated |
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Initially, commencing on the Effective Date the Applicable Fee Rate shall be deemed to be in
Category 4 above. Thereafter, each change in the Applicable Fee Rate resulting from a publicly
announced change in the Index Debt Ratings shall be effective during the period commencing on the
date of the public announcement thereof and ending on the date immediately preceding the effective
date of the next such change.
Applicable Percentage means, with respect to any Lender, the percentage of the total
Commitments represented by such Lenders Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
Three-Year Credit Agreement
- 3 -
Applicable Rate means, for any day, a per annum percentage equal to: (a) with
respect to any ABR Loan, the applicable Credit Default Swap Spread minus 1.00%
(provided that such percentage for purposes of this clause (a) shall in no event be less
than 0%); (b) with respect to any Eurodollar Loan, the applicable Credit Default Swap Spread; and
(c) with respect to ticking fees or commitment fees pursuant to Section 2.09(a) or (b),
respectively, the Applicable Fee Rate.
Approved Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignment and Assumption means an assignment and assumption entered into by a
Lender as assignor and an assignee (with the consent of each Person whose consent is required by
Section 9.04(b)), and accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent.
Assuming Lender has the meaning assigned to such term in Section 2.17.
Availability Period means the period from and including the Closing Date to but
excluding the earlier of the Commitment Termination Date and the date of termination of the
Commitments.
Bankruptcy Event means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.
Board means the Board of Governors of the Federal Reserve System of the United
States.
Borrower means any of the Company and the Subsidiary Borrowers, as the context may
require, and Borrowers means all of the foregoing. References herein to the applicable
Borrower with respect to any Borrowing or Loan shall refer to that Borrower to which such Loan or
Borrowing is (or is to be, as applicable) made by the Lenders.
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.
Three-Year Credit Agreement
- 4 -
Borrowing Request means a request by a 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
banks in New York City are authorized or required by Law to remain closed; provided that,
when used in connection with a Eurodollar Loan, the term Business Day shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Catastrophe Bond means any note, bond or other instrument of Indebtedness or any
Swap Contract or other similar agreement which has a catastrophe, weather or other risk feature
linked to payments thereunder.
CDS Spread Determination Date means (a) with respect to any Eurodollar Loan, the
date which is two Business Days prior to the first day of the Interest Period for such Eurodollar
Loan, and, for such Eurodollar Loans with an Interest Period longer than three months, at the end
of each successive three-month period after the first day of such Interest Period, and (b) with
respect to any ABR Loan, on the Closing Date and the last Business Day of each calendar quarter,
commencing with the calendar quarter in which the Closing Date occurs.
A Change in Control shall be deemed to have occurred if (a) any person or group
(within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
hereof), other than Federal Reserve Bank of New York and United States Department of the Treasury
(the Permitted Investors), shall own, directly or indirectly, beneficially or of record,
shares representing more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Company; (b) a majority of the seats (other than vacant seats)
on the board of directors of the Company shall at any time be occupied by persons who were not (i)
nominated by the board of directors of the Company, (ii) appointed by directors so nominated or
(iii) elected with the favorable vote of the Permitted Investors; or (c) any change in control (or
similar event, however denominated) with respect to the Company shall occur under and as defined in
any indenture or agreement in respect of Material Indebtedness to which the Company or any
Subsidiary is a party, which event enables or permits the holder or holders of such Material
Indebtedness or any trustee or agent on its or their behalf to cause such Material Indebtedness to
become due, or to require the prepayment, repurchase, redemption or defeasance thereof, prior to
its scheduled maturity.
Change in Law means (a) the adoption of any Law after the date of this Agreement,
(b) any change in any Law or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.12(b), by any lending office of such Lender or by such Lenders
Three-Year Credit Agreement
- 5 -
holding company, if any) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the date of this Agreement;
provided that, notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street
Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder issued in connection therewith or in implementation thereof shall be deemed to be a
Change in Law, regardless of the date enacted, adopted, issued or implemented.
Chartis Letter of Credit Agreement means the Letter of Credit and Reimbursement
Agreement dated as of the date hereof among Chartis Inc., the lenders party thereto and JPMCB, as
administrative agent thereunder, and certain other parties thereto.
Closing Date has the meaning assigned to such term in Section 4.02.
Code means the Internal Revenue Code of 1986, as amended.
Commitment means, with respect to each Lender, the commitment of such Lender to make
Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lenders
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.06, (b) increased from time to time pursuant to Section 2.17 and (c) reduced
or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lenders Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption (or, in the case of any Assuming Lender, the agreement entered into by
such Assuming Lender under Section 2.17) pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders Commitments is
$1,500,000,000 as of the Effective Date.
Commitment Increase has the meaning assigned to such term in Section 2.17.
Commitment Increase Date has the meaning assigned to such term in Section 2.17.
Commitment Termination Date means the third anniversary of the Closing Date (or if
such date is not a Business Day, the immediately preceding Business Day).
Company means American International Group, Inc., a Delaware corporation.
Compensation Period has the meaning assigned to such term in Section 2.04(b).
Consolidated Net Worth means, at any date, the total shareholders equity of the
Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
provided that there shall be excluded from Consolidated Net Worth (a) accumulated other
comprehensive income (or loss), (b) all noncontrolling interests (as determined in accordance with
the Statement of Financial Accounting Standards No. 160, entitled Noncontrolling Interests in
Consolidated Financial Statements) and (c) amortization of prepaid commitment fees in respect of
the FRBNY Credit Agreement.
Three-Year Credit Agreement
- 6 -
Consolidated Total Capitalization means, at any date, the sum of (a) Consolidated
Total Debt plus (b) Consolidated Net Worth.
Consolidated Total Debt means, at any date, without duplication, the sum of (a) the
aggregate amount of all Indebtedness of the Company and its Subsidiaries (excluding (i) all
Operating Indebtedness of the Company and its Subsidiaries and (ii) all Indebtedness of
International Lease Finance Corporation, American General Finance, Inc. and their respective
subsidiaries; provided that, with respect to clause (ii) above, neither the Company nor any
other Subsidiary shall provide any credit support of any kind with respect to such Indebtedness)
plus (b) the aggregate amount of Hybrid Securities, determined on a consolidated basis in
accordance with GAAP.
Contractual Obligation means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.
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 Default Swap Spread mean, at any time with respect to any Loan as at any CDS
Spread Determination Date, the Companys three-year credit default swap mid-rate spread as provided
by Markit Group, Ltd. (Markit) to the Administrative Agent after the close of business on
the Business Day immediately preceding such CDS Spread Determination Date; provided that
the Credit Default Swap Spread with respect to any Loan to any Borrower shall not be (a) less than
the Minimum CDS Spread (as determined below in this definition) (the Minimum CDS
Spread) or (b) greater than the Maximum CDS Spread (as determined below in this definition)
(the Maximum CDS Spread). If for any reason the Credit Default Swap Spread is not
available or is not provided by Markit to the Administrative Agent by 11:00 a.m. New York City time
on any date of determination of the Credit Default Swap Spread, the Company and the Lenders shall
negotiate in good faith, for a period of up to 30 days thereafter (such 30-day period, the
Negotiation Period), to agree on an alternative method for establishing the Credit
Default Swap Spread; provided that (i) the Credit Default Swap Spread applicable to each
CDS Spread Determination Date which falls during the Negotiation Period shall be based upon the
then most recently available Credit Default Swap Spread and (ii) if no such alternative method is
agreed upon during the Negotiation Period, the Credit Default Swap Spread with respect to any Loans
shall be the Credit Default Swap Spread determined under clause (i) above and increased by (A)
0.25% on the first Business Day following the expiration of the Negotiation Period (the
Initial Rate Increase Date) and (B) an additional 0.25% on each succeeding 90-day
anniversary of the Initial Rate Increase Date (or if any such 90th day is not a Business
Day, on the immediately succeeding Business Day), in each case, so long as the Credit Default Swap
Spread remains unavailable or is not provided by Markit and an alternative method for establishing
the Credit Default Swap Spread has not been agreed upon by the Company and the Lenders hereunder
(provided that the Credit Default Swap Spread determined under this clause (ii) shall in no
event be less than the Minimum CDS Spread or greater than the Maximum CDS Spread). For purposes of
this definition, Minimum CDS Spread and the Maximum CDS
Three-Year Credit Agreement
- 7 -
Spread means, for any day, the applicable percentage per annum set forth below under the
caption Minimum CDS Spread or Maximum CDS Spread, respectively, determined by reference to the
Index Debt Ratings applicable on such day:
|
|
|
|
|
|
|
|
|
Index Debt Ratings |
|
Minimum CDS Spread |
|
Maximum CDS Spread |
Category 1 |
|
|
0.75 |
% |
|
|
3.25 |
% |
≥ AA- / Aa3 |
|
|
|
|
|
|
|
|
Category 2 |
|
|
1.00 |
% |
|
|
3.50 |
% |
A+ / A1 |
|
|
|
|
|
|
|
|
Category 3 |
|
|
1.25 |
% |
|
|
3.75 |
% |
A / A2 |
|
|
|
|
|
|
|
|
Category 4 |
|
|
1.50 |
% |
|
|
4.00 |
% |
A- / A3 |
|
|
|
|
|
|
|
|
Category 5 |
|
|
2.00 |
% |
|
|
4.25 |
% |
BBB+ / Baa1 |
|
|
|
|
|
|
|
|
Category 6 |
|
|
2.50 |
% |
|
|
4.50 |
% |
≤ BBB / Baa2 |
|
|
|
|
|
|
|
|
or unrated |
|
|
|
|
|
|
|
|
Default means any event or condition which constitutes an Event of Default or
which, upon notice, lapse of time or both, would constitute an Event of Default.
Default Rate means a rate per annum equal to 2.00% plus the Alternate Base
Rate as in effect from time to time plus the Applicable Rate applicable to ABR Loans;
provided that, with respect to principal of any Eurodollar Loan that shall become due
(whether at stated maturity, by acceleration, by prepayment or otherwise) on a day other than the
last day of the Interest Period therefor, the Default Rate shall be a rate per annum equal to,
for the period from and including such due date to but excluding the last day of such Interest
Period, 2.00% plus the interest rate for such Eurodollar Loan as provided in Section
2.10(b) and, thereafter, the rate provided for above in this definition.
Defaulting Lender means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to
the Administrative Agent or any Lender any other amount required to be paid by it hereunder,
unless, in the case of clause (i) above, (x) such Lender notifies the Administrative Agent in
writing that such failure is the result of such Lenders good faith determination that a condition
precedent to funding (specifically identified and including the particular default, if any) has not
been satisfied or (y) such failure has been satisfied, (b) has notified the Company or the
Administrative Agent in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless such
writing or public statement indicates that such position is based on such Lenders good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent, acting in good faith, to confirm in writing in a manner
satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder
(provided that such Lender shall cease to be a Defaulting Lender pursuant to this
Three-Year Credit Agreement
- 8 -
clause (c) upon receipt by the Administrative Agent of such confirmation) or (d) has become
the subject of a Bankruptcy Event.
Department means, with respect to any Insurance Subsidiary, the Governmental
Authority of such Insurance Subsidiarys jurisdiction of domicile with which such Insurance
Subsidiary is required to file its annual statutory financial statement (including any jurisdiction
of domicile deemed to be such by virtue of a commercially domiciled or similar standard).
Designated Subsidiaries means, without duplication, (a) AIG FP, Chartis Inc.,
Chartis International, LLC, Chartis Overseas Limited, Chartis U.S., Inc., National Union Fire
Insurance Company of Pittsburgh, Pa., American Home Assurance Company, AIG Life Holdings (US),
Inc., Western National Life Insurance Company, American General Life Insurance Company, SAFG
Retirement Services, Inc., and SunAmerica Life Insurance Company; (b) any Subsidiary that has total
assets in excess of 10% of the consolidated total assets of the Company and its Subsidiaries (based
upon and as of the date of delivery of the most recent consolidated balance sheet of the Company
furnished pursuant to Section 3.05(a) or 5.01); (c) any Subsidiary formed or organized after the
Effective Date that owns, directly or indirectly, greater than 10% of the Equity Interests in any
other Designated Subsidiary; and (d) each Subsidiary Borrower (so long as it remains a Subsidiary
Borrower hereunder).
Disclosed Matters means any matters disclosed in any Form 10-Q or Form 8-K filed by
the Company with the SEC during the period from and including January 1, 2010 to and including
November 5, 2010.
Disclosed Tax Matters means any matters relating to taxes set forth or accounted for
in the Federal Income Taxes or Income Taxes notes, as applicable, to the Companys consolidated
financial statements in any Form 10-Q or 10-K filed by the Company with the SEC during the period
from and including January 1, 2008 to and including November 5, 2010.
Disposition means the sale, transfer, license, sublicense, lease, sublease or other
disposition (including any sale and leaseback transaction and any sale of Equity Interests) of any
property by any Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Stock means any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, in each case other than
solely for Capital Stock in such Person that does not constitute Disqualified Stock and cash in
lieu of fractional shares of such Capital Stock and at any time on or prior to the first
anniversary of the Commitment Termination Date, or (b) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest
referred to in clause (a) above (other than solely for Capital Stock in such Person that do not
constitute Disqualified Stock and cash in lieu of fractional shares of such Capital
Three-Year Credit Agreement
- 9 -
Stock), in each case at any time prior to the first anniversary of the Commitment Termination
Date; provided, however, that Capital Stock in any Person that would not constitute
Disqualified Stock but for terms thereof giving holders thereof the right to require such Person to
redeem or purchase such Capital Stock upon the occurrence of a disposition or a change of control
shall not constitute Disqualified Stock if any such requirement becomes operative only after
repayment in full of all the Loans and all other Obligations that are accrued and payable.
Dollars or $ refers to lawful money of the United States.
Domestic Subsidiary means any Subsidiary that is incorporated or organized under the
laws of any jurisdiction of the United States, any State thereof or the District of Columbia.
Effective Date has the meaning assigned to such term in Section 4.01.
Environmental Laws means all federal, state, local, municipal and foreign Laws
(including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
injunctions, permits, directives, orders (including consent orders), and legally binding
requirements of any Governmental Authority, in each case concerning the protection of the
environment, natural resources, human health and safety as it relates to any Hazardous Materials or
the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling, disposal or handling of,
or the arrangement for such activities with respect to, Hazardous Materials, in each case not
relating to or arising out of the insurance or reinsurance activities of the Company or the
Subsidiaries.
Environmental Liability means all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of (a) actual or alleged compliance or noncompliance with any
Environmental Law, (b) the generation, manufacture, processing, distribution, use, handling,
transport, storage, treatment, recycling or disposal of, or the arrangement for such activities
with respect to, any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release
of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant
to which a liability or obligation is assumed or imposed with respect to any of the foregoing.
Liabilities of the type described above arising out of the obligation of any Insurance Subsidiary
with respect to its insurance operations shall not constitute Environmental Liabilities
hereunder.
Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any Person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the
Three-Year Credit Agreement
- 10 -
Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated
as a single employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan,
whether or not waived, (c) the determination that any Plan is in at-risk status (within the
meaning of Section 430 of the Code and Section 303 of ERISA, (d) the filing pursuant to Section
412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan, (e) the incurrence by the Company or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of any Plan or the
withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or
Multiemployer Plan, (f) the receipt by the Company or any of its ERISA Affiliates from the PBGC or
a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan, (g) the requirement that a Plan provide a security
pursuant to Section 436(f)(i) of the Code, (h) the receipt by the Company or any of its ERISA
Affiliates of any notice, or the receipt by any Multiemployer Plan from the Company or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA, (i) the Company or any of the Subsidiaries engaging in a
prohibited transaction with respect to a plan for which the Company or any of the Subsidiaries is
a disqualified person (within the meaning of Section 4975 of the Code) or with respect to which
the Company or any such Subsidiary could otherwise be liable, (j) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably be expected to result in liability of
the Company or any Subsidiary under Title IV of ERISA or (k) any Foreign Benefit Event.
Eurodollar, 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 Adjusted LIBO Rate.
Event of Default has the meaning assigned to such term in Article VII.
Excluded Taxes means, with respect to any payment made by any Borrower, any of the
following Taxes imposed on or with respect to the Recipient: (a) Other Connection Taxes; (b) Taxes
attributable to such Recipients failure or inability to comply with Section 2.14(f); and (c) U.S.
Federal withholding Taxes from a Law in effect (including FATCA) on the date on which (i) such
Recipient acquires directly or indirectly its applicable ownership interest in the Loans,
participations therein or Commitment (other than a Recipient acquiring its applicable ownership
interest pursuant to Section 2.16(b)) or (ii) such Recipient changes its lending office, except in
each case to the extent that, pursuant to Section 2.14, amounts with respect to such taxes were
payable either to such Recipients assignor immediately before such Recipient became a Recipient
with respect to its applicable ownership interest in the Loans or Commitment or to such Recipient
immediately before it changed its lending office.
Three-Year Credit Agreement
- 11 -
FATCA means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof.
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.
Financial Officer means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.
Foreign Benefit Event means, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable Law or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable Law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan, (d) the incurrence of any liability by the Company or any
Subsidiary under applicable Law on account of the complete or partial termination of such Foreign
Pension Plan or the complete or partial withdrawal of any participating employer therein or (e) the
occurrence of any transaction that is prohibited under any applicable Law and that could reasonably
be expected to result in the incurrence of any liability by the Company or any of the Subsidiaries,
or the imposition on the Company or any of the Subsidiaries of any fine, excise tax or penalty
resulting from any noncompliance with any applicable Law.
Foreign Pension Plan means any benefit plan maintained outside of the U.S. primarily
for the benefit of employees working outside the U.S. that under applicable Law is required to be
funded through a trust or other funding vehicle other than a trust or funding vehicle maintained
exclusively by a Governmental Authority.
FRBNY Credit Agreement means the Credit Agreement dated as of September 22, 2008
between the Company and Federal Reserve Bank of New York, as amended.
Fund means any investment vehicle managed by the Company or an Affiliate of the
Company and created in the ordinary course of the Companys asset management business or tax credit
investment business for the purpose of selling and/or holding, directly or indirectly, Equity
Interests in such investment vehicle to third parties.
GAAP means United States generally accepted accounting principles applied on a
consistent basis.
Three-Year Credit Agreement
- 12 -
GIC means a guaranteed investment contract or funding agreement or other similar
agreement issued by the Company or any of its Subsidiaries that guarantees to a counterparty a rate
of return on the invested capital over the life of such contract or agreement.
Governmental Authority means any federal, state, local, municipal or foreign court
or governmental agency, authority, instrumentality, regulatory body (including any board of
insurance, insurance department or insurance commissioner), court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
Guarantee of or by any Person means any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the primary obligor) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course of business.
Guaranteed Obligations has the meaning assigned to such term in Section 10.01.
Hazardous Materials means any pollutant, contaminant, waste or any toxic,
radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material,
including petroleum, its derivatives, by-products and other hydrocarbons, coal ash, radon gas,
asbestos, asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorohydrocarbons, and any substance, waste or material regulated under any
Environmental Law.
Hybrid Securities means (a) the Companys 6.25% Series A-1 Junior Subordinated
Debentures, 5.75% Series A-2 Junior Subordinated Debentures, 4.875% Series A-3 Junior Subordinated
Debentures, 6.45% Series A-4 Junior Subordinated Debentures, 7.70% Series A-5 Junior Subordinated
Debentures, 8.175% Series A-6 Junior Subordinated Debentures, 8.00% Series A-7 Junior Subordinated
Debentures and 8.625% Series A-8 Junior Subordinated Debentures and (b) any similar junior
subordinated debt or trust preferred securities issued by the Company or any of its Subsidiaries
after the Effective Date that receive equivalent hybrid equity treatment from S&P and Moodys.
Increasing Lender has the meaning assigned to such term in Section 2.17.
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,
Three-Year Credit Agreement
- 13 -
debentures, notes or similar instruments, (c) all obligations of such Person under conditional
sale or other title retention agreements relating to property or assets purchased by such Person,
(d) all obligations of such Person issued or assumed as the deferred purchase price of property or
services (excluding trade accounts payable and accrued obligations incurred in the ordinary course
of business), (e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property
owned or acquired by such Person, whether or not the obligations secured thereby have been assumed
(provided that, for purposes of this clause (e), if such Person has not assumed or
otherwise become personally liable for any such Indebtedness, the amount of the Indebtedness of
such Person in connection therewith shall be limited to the lesser of (i) the fair market value of
such property and (ii) the amount of Indebtedness secured by such Lien), (f) all Guarantees by such
Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
Synthetic Lease Obligations of such Person, (i) all obligations of such Person as an account party
in respect of letters of credit, (j) all obligations of such Person in respect of bankers
acceptances and (k) all obligations of such person in respect of Disqualified Stock. Indebtedness
shall not include: (i) any obligation of any Person to make any payment, hold funds or securities
or to segregate funds or securities for the benefit of one or more third parties pursuant to any
surety or fidelity bond, any insurance or reinsurance contract or program, any distribution
agreement, any program administrator agreement, managing general agency agreement, third party
administrator agreement, claims services agreement or similar insurance services agreement, or any
annuity contract, variable annuity contract or other similar agreement or instrument (including
GICs and financial guarantees), including any policyholder account, arising in the ordinary course
of any such Persons business; (ii) all other liabilities (or guarantees thereof) of any Person
arising in the ordinary course of any such Persons business as an insurance company, reinsurance
company (including GICs), agency, producer or claims services company or as a provider of financial
or investment services (including GICs); (iii) obligations of any Person under Swap Contracts; (iv)
obligations of any Person under or arising out of any employee benefit plan, employment contract or
other similar arrangement; (v) obligations of any Person under any severance or termination of
employment agreement or plan; (vi) obligations of any Person in respect of the sponsorship of
Catastrophe Bonds transactions; (vii) utilizing proceeds from the disposition of properties (or
interests therein) generating tax credits to secure guarantee obligations to third party investors
in tax credit Funds, or providing guarantees to third-party investors in tax credit Funds to
protect against recapture of previously-allocated tax credits occurring after the disposition of
such properties (or interests therein); (viii) obligations of the Company or any of its
Subsidiaries incurred pursuant to the Recapitalization Documents or in connection with the
transactions contemplated thereby; or (ix) Indebtedness of Subsidiaries that are held for sale (and
accounted for as such under GAAP) as of the Effective Date. The Indebtedness of any Person shall
include the Indebtedness of any partnership (other than Indebtedness that is nonrecourse to such
Person) in which such Person is a general partner.
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by any Borrower under any Loan Document and (b) Other Taxes. For
avoidance of doubt, Indemnified Taxes does not include Taxes imposed by applicable Law on a
distribution or similar payment made by a Lender to a Person that is an owner of such Lender with
respect to its ownership interest in such Lender and distributions and similar payments made by
such owners to their owner.
Three-Year Credit Agreement
- 14 -
Index Debt means senior, unsecured, long-term indebtedness for borrowed money of the
Company that is not guaranteed by any other Person or subject to any other credit enhancement.
Index Debt Rating means, as of any date of determination, the rating as determined
by S&P or Moodys of the Index Debt; provided that (a) if either Moodys or S&P shall not
have in effect an Index Debt Rating (other than by reason of the circumstances referred to in the
penultimate sentence of this definition), then such rating agency shall be deemed to have
established an Index Debt Rating in Category 6 of the relevant pricing grids set forth in the
definition of Applicable Fee Rate and Credit Default Swap Spread (each, a pricing
grid); (b) if the Index Debt Rating established or deemed to have been established by Moodys
and S&P shall fall within different rating levels (and, for purposes hereof, a rating level shall
be the comparable rating level for the Moodys rating and the S&Ps rating (i.e., ratings of A-/A3
are the same rating level)), the Applicable Fee Rate, the Minimum CDS Spread and the Maximum CDS
Spread shall be based on the higher of the two ratings, provided that if one of the two
ratings is two or more rating levels lower than the other, the Applicable Fee Rate, the Minimum CDS
Spread and the Maximum CDS Spread shall be determined by reference to the rating level next above
that of the lower of the two ratings; and (c) if the Index Debt Rating established or deemed to
have been established by Moodys and S&P shall be changed (other than as a result of a change in
the rating system of Moodys or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency, irrespective of when notice of such change shall
have been furnished by the Company to the Administrative Agent and the Lenders pursuant to Section
5.02 or otherwise. Each change in the Applicable Fee Rate, the Minimum CDS Spread and the Maximum
CDS Spread resulting from a publicly announced change in the Index Debt Ratings shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change. If the rating system of Moodys
or S&P shall change, or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable Fee Rate, the Minimum
CDS Spread and the Maximum CDS Spread shall be determined by reference to the ratings most recently
in effect prior to such change or cessation. At any time an Event of Default has occurred and is
continuing, the Applicable Fee Rate, the Minimum CDS Spread and the Maximum CDS Spread shall be
deemed to be in Category 6 of the relevant pricing grids (as defined above in this definition).
Insurance Subsidiary means any Subsidiary that is required to be licensed as an
insurer or reinsurer.
Interest Election Request means a request by a Borrower to convert or continue a
Borrowing in accordance with Section 2.05.
Interest Payment Date means (a) with respect to any ABR Loan, each Quarterly Payment
Date and (b) with respect to any Eurodollar Loan, the last day of each Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of any Interest Period
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that is more than three months long, each day prior to the last day of such Interest Period
that occurs at intervals of three months after the first day of such Interest Period.
Interest Period means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the applicable Borrower may
elect; provided that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period 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.
IRS means the United States Internal Revenue Service.
Joint Lead Arrangers means the Joint Lead Arrangers and Joint Bookrunners listed on
the cover page of this Agreement.
JPMCB means JPMorgan Chase Bank, N.A.
Laws means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
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 Assumption or an instrument executed by
such Person pursuant to Section 2.17, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption.
LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute page thereof, or any
successor service, providing quotations of interest rates applicable to Dollar deposits in the
London interbank market comparable to those currently provided on such page, as determined by the
Administrative Agent from time to time) 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. In the event that such rate is not available at such time for
any reason, then the LIBO Rate with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which Dollar deposits of $5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
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approximately 11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Loan Documents means, collectively, this Agreement, the promissory notes (if any)
executed and delivered pursuant to Section 2.07(e) and each Subsidiary Borrower Designation.
Loan Parties means, collectively, the Company and the Subsidiary Borrowers.
Loans means the loans made by the Lenders to the Borrowers pursuant to Section 2.01.
Margin Stock means margin stock within the meaning of Regulations T, U and X of
the Board.
Material Adverse Change means a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform its obligations under the Loan
Documents or (c) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder.
Material Indebtedness means Indebtedness (other than the Loans and Indebtedness of a
Subsidiary of the type permitted under Section 6.01(h)), or obligations in respect of one or more
Swap Contracts, of any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $500,000,000. For purposes of determining Material Indebtedness, the principal
amount of the obligations of the Company or any Subsidiary in respect of any Swap Contract at any
time shall be the Agreement Value of such Swap Contract at such time.
Material Subsidiaries means, without duplication, (a) any Designated Subsidiary; (b)
any Subsidiary that has total assets in excess of 2% of the consolidated total assets of the
Company and its Subsidiaries (based upon and as of the date of delivery of the most recent
consolidated balance sheet of the Company furnished pursuant to Section 3.05(a) or 5.01); and (c)
any Subsidiary that owns, directly or indirectly, greater than 10% of the Equity Interests in any
other Material Subsidiary; provided that, notwithstanding the foregoing, so long as Fuji
Fire & Marine Insurance Company, Limited (Fuji Fire & Marine) shall not be a wholly-owned
Subsidiary of the Company, neither Fuji Fire & Marine nor any of its Subsidiaries shall be
considered a Material Subsidiary.
Maximum CDS Spread has the meaning assigned to such term in the definition of
Credit Default Swap Spread.
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Minimum CDS Spread has the meaning assigned to such term in the definition of
Credit Default Swap Spread.
Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
NAIC means the National Association of Insurance Commissioners or any successor
thereto, or in the absence of the National Association of Insurance Commissioners or such
successor, any other association, agency or other organization performing advisory, coordination or
other like functions among insurance departments, insurance commissioners and similar Governmental
Authorities of the various states of the United States toward the promotion of uniformity in the
practices of such Governmental Authorities.
Non-U.S. Lender means a Lender that is not a U.S. Person.
Obligations means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Company and the other Loan Parties arising under any Loan Document or otherwise
with respect to any Loans (including with respect to principal, interest, fees and other amounts
payable by the Loan Parties thereunder), whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against the Company, any other
Loan Party or any Affiliate thereof of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization naming such Person as the debtor in such case, proceeding
or action, regardless of whether such interest and fees are allowed claims in such proceeding.
OFAC has the meaning assigned to such term in Section 3.16.
Operating Indebtedness of any Person means, at any date, without duplication, any
Indebtedness of such Person (a) in respect of AXXX, XXX and other similar life reserve
requirements, (b) incurred in connection with repurchase agreements and securities lending, (c) to
the extent the proceeds of which are used directly or indirectly (including for the purpose of
funding portfolios that are used to fund trusts in order) to support AXXX, XXX and other similar
life reserves, (d) to the extent the proceeds of which are used to fund discrete customer-related
assets or pools of assets (and related hedge instruments and capital) that are at least notionally
segregated from other assets and have sufficient cash flow to pay principal and interest thereof,
with insignificant risk of other assets of such Person being called upon to make such principal and
interest payments, (e) incurred as operating leverage and existing as of September 30, 2010 and set
forth in Schedule 2.01A (and any extensions, renewals, exchanges or replacements of such
Indebtedness to the extent the principal amount of such Indebtedness is not increased, unless
otherwise permitted under another clause of this definition) or (f) incurred after September 30,
2010 that is excluded entirely from financial leverage by both S&P and Moodys in their evaluation
of such Person.
Organization Documents means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive
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documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited
liability company, the certificate or articles of formation or organization and operating
agreement; and (c) with respect to any partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable agreement of formation or organization
and any agreement, instrument, filing or notice with respect thereto filed in connection with its
formation or organization with the applicable Governmental Authority in the jurisdiction of its
formation or organization and, if applicable, any certificate or articles of formation or
organization of such entity.
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Taxes (other than a connection solely arising from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
or sold or assigned an interest in any Loan Document). For avoidance of doubt, branch profit taxes
shall be treated as Other Connection Taxes.
Other Credit Agreement means the 364-Day Credit Agreement dated as of the date
hereof between the Company, the subsidiary borrowers party thereto, certain lenders party thereto
and JPMCB, as administrative agent thereunder.
Other Taxes means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes or Taxes imposed with respect to an
assignment or participation.
Participant Register has the meaning assigned to such term in Section 9.04(c).
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Person means any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of
ERISA.
Potential Divestitures means the potential divestitures by the Company and its
Subsidiaries identified in the letter delivered by the Company in connection with this Agreement to
the Administrative Agent and the Lenders on or prior to the Effective Date.
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Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMCB as its prime rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
Priority Indebtedness means (a) all Indebtedness of the Company that is secured by a
Lien on any property or asset of the Company or its Subsidiaries and (b) all Indebtedness of the
Material Subsidiaries.
Quarterly Payment Date means the last Business Day of each of March, June, September
and December in each year.
Recapitalization Documents means the Master Transaction Agreement dated as of
December 8, 2010 among the Company, the SPVs, Federal Reserve Bank of New York, United States
Department of the Treasury and AIG Credit Facility Trust (including all exhibits).
Recipient means, as applicable, (a) the Administrative Agent and (b) any Lender
(and, in the case of a Lender that is classified as a partnership for U.S. Federal tax purposes, a
Person treated as a beneficial owner thereof for U.S. Federal tax purposes).
Register has the meaning assigned to such term in Section 9.04(b)(iv).
Regulation D means Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation T means Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation U means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation X means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Reinsurance Agreements means any agreement, contract, treaty, certificate or other
arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer that is
not an Affiliate of the Company all or part of the liability assumed or assets held by it under one
or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties,
certificates or similar arrangements. Reinsurance Agreements shall include, but not be limited to,
any agreement, contract, treaty, certificate or other arrangement that is treated as such by the
applicable Department.
Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents, attorneys, accountants and
other professional advisors of such Person and of such Persons Affiliates.
Release means any release, spill, emission, leaking, dumping, pumping, emptying,
escaping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or
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migration into or through the environment or within, at, to, under, from or upon any building,
structure, facility or fixture.
Required Lenders means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that the Revolving Credit Exposure and unused
Commitment of any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
Responsible Officer means any executive officer or Financial Officer of the Company
and any other officer or similar official thereof responsible for the administration of the
obligations of such Person in respect of this Agreement.
Revolving Credit Exposure means, with respect to any Lender at any time, the
aggregate outstanding principal amount of such Lenders Loans at such time.
S&P means Standard & Poors Ratings Group.
SAP means, with respect to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the insurance commissioner (or other similar authority) in the
domicile of such Insurance Subsidiary for the preparation of annual statements and other financial
reports of such Insurance Subsidiary, which are applicable to the circumstances as of the date of
filing of such statement or report.
SEC means the Securities and Exchange Commission, or any regulatory body that
succeeds to the functions thereof.
SPVs has the meaning assigned to such term in Section 6.02(k).
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation
D). Such reserve percentages shall include those imposed pursuant to Regulation D. Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
subsidiary means, with respect to any Person (herein referred to as the
parent), any corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing more than 50% of the
ordinary voting power or more than 50% of the general partnership or managing limited liability
company interests (as applicable) are, at the time any determination is being made, owned,
Controlled or held directly or indirectly by such parent; provided that no Fund shall be a
subsidiary for the purpose hereof.
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Subsidiary means any direct or indirect subsidiary of the Company.
Subsidiary Borrower mean each Subsidiary of the Company that shall become a
Subsidiary Borrower pursuant to Section 2.19, so long as such Subsidiary shall remain a Subsidiary
Borrower hereunder. As of the Effective Date, there are no Subsidiary Borrowers party hereto.
Subsidiary Borrower Designation means a Subsidiary Borrower Designation entered into
by the Company and the applicable Subsidiary of the Company, pursuant to which such Subsidiary
shall (subject to the terms and conditions of Section 2.19) be designated as a Borrower hereunder,
substantially in the form of Exhibit B-1 or any other form approved by the Administrative Agent.
Subsidiary Borrower Termination Notice has the meaning assigned to such term in
Section 2.19(c).
Swap Contract means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
emission rights, spot contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement and (b) any and all transactions of
any kind, and the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a Master
Agreement), including any such obligations or liabilities under any Master Agreement;
provided that Swap Contracts shall not include (i) the stock purchase contracts that
constitute a component of the Hybrid Securities of the Company and its Subsidiaries issued in the
form of equity units and outstanding as of the Effective Date, (ii) any right, option, warrant or
other award made under an employee benefit plan, employment contract or other similar arrangement
or (iii) any right, warrant or option or other convertible or exchangeable security or other
instrument issued by the Company or any Subsidiary or Affiliate of the Company or any Subsidiary
for capital raising purposes.
Syndication Agents means the Co-Syndication Agents listed on the cover page of this
Agreement.
Synthetic Lease means, as to any Person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is
accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or
obtains ownership of the property so leased for U.S. federal income tax purposes, other than any
such lease under which such Person is the lessor.
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Synthetic Lease Obligations means, as to any Person, an amount equal to the
capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a
balance sheet of such Person in accordance with GAAP if such obligations were accounted for as
Capital Lease Obligations.
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 Loan Parties of
the Loan Documents, 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
Adjusted LIBO Rate or the Alternate Base Rate.
U.S. or United States means the United States of America.
U.S. Person means a United States person within the meaning of Section 7701(a)(30)
of the Code.
U.S. Tax Certificate has the meaning assigned to such term in Section
2.14(f)(ii)(D)(2).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Withholding Agent means each Loan Party and the Administrative Agent.
SECTION
1.02. 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 definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and
any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or
regulation as from time to time amended, supplemented or otherwise modified, (c) any reference
herein to any Person shall be construed to include such Persons successors and assigns, (d) 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, (e) 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 and (f) the words asset and property shall be construed to have the same meaning
and effect and to refer to any and all
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tangible and intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.03. Accounting Terms and Determinations. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make Loans to
one or more of the Borrowers from time to time during the Availability Period in an aggregate
principal amount that will not result in (a) such Lenders Revolving Credit Exposure exceeding such
Lenders Commitment or (b) the total Revolving Credit Exposures exceeding the total Commitments.
Within the foregoing limits and subject to the terms and conditions set forth herein, each Borrower
may borrow, prepay and reborrow Loans.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing consisting
of Loans of the same Type made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans
as required.
(b) Type of Loans. Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the applicable Borrower may request in
accordance herewith. 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 applicable Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the commencement of the
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount of
$10,000,000 or a larger multiple of $1,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount equal to $10,000,000
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or a larger multiple of $1,000,000;
provided that an ABR 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 ten
Eurodollar Borrowings outstanding.
(d) Limitations on Lengths of Interest Periods. Notwithstanding any other provision
of this Agreement, no Borrower shall be entitled to request, or to elect to convert to or continue
as a Eurodollar Borrowing, any Borrowing if the Interest Period requested therefor would end after
the Commitment Termination Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, a 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., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 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 applicable Borrower and (if such Borrower is not the
Company) the Company. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the identity of the applicable Borrower;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be
a period contemplated by the definition of the term Interest Period; and
(vi) the location and number of the applicable Borrowers account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the applicable Borrower shall be deemed to have selected an Interest Period of one
months 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 Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Funding by Lenders. 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 (or, in
the case of an ABR Borrowing, 2:00 p.m.), New York City time, to the
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account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative
Agent will make such Loans available to the applicable Borrower by promptly crediting the amounts
so received, in like funds, to an account of such Borrower or the Company maintained with the
Administrative Agent in New York City and designated by such Borrower in the applicable Borrowing
Request.
(b) Presumption by Administrative Agent. 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 Lenders 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 applicable Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the Administrative Agent (the
Compensation Period), at the greater of (i) the Federal Funds Effective Rate from time to
time in effect and (ii) a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lenders Loan included in such Borrowing. If such
Lender does not pay such amount forthwith upon the Administrative Agents demand therefor, the
Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower
shall pay such amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower
may have against any other Lender as a result of any default by such Lender hereunder.
SECTION 2.05. Interest Elections.
(a) Elections by Borrowers for Borrowings. Each Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have the Interest Period specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such
Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar Borrowing, may elect the
Interest Period therefor, all as provided in this Section. Such Borrower may elect different
options with respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans constituting such Borrowing,
and the Loans constituting each such portion shall be considered a separate Borrowing.
(b) Notice of Elections. To make an election pursuant to this Section, the applicable
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 such 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
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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 such Borrower and (if such Borrower is not
the Company) the Company.
(c) Information in Interest Election Requests. 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 allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph 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 an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor
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 applicable Borrower shall be deemed to have selected an Interest Period
of one months duration.
(d) Notice by Administrative Agent to Lenders. Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof
and of such Lenders portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the applicable Borrower fails to deliver
a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period therefor, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any
contrary provision hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies the Company, then, so
long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or
continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period therefor.
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SECTION 2.06. Termination and Reduction of Commitments.
(a) Scheduled Termination. Unless previously terminated, the Commitments shall
terminate on the Commitment Termination Date. Unless the Closing Date shall have occurred at or
prior to 3:00 p.m., New York City time, on March 31, 2011, this Agreement and the Commitments shall
automatically terminate at such time.
(b) Voluntary Termination or Reduction. The Company may at any time terminate the
Commitments and this Agreement or from time to time reduce the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000 or a larger
multiple of $1,000,000 and (ii) the Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with Section 2.08, the total
Revolving Credit Exposures would exceed the total Commitments. Notwithstanding the termination of
the Commitments, this Agreement shall not terminate, and the obligations of the Loan Parties under
this Agreement shall continue in full force and effect until such time as all principal of or
accrued interest on the Loans and all fees and other amounts payable under this Agreement or any
other Loan Document have been paid in full.
(c) Notice of Voluntary Termination or Reduction. The Company shall notify the
Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of
this Section at least two Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly following receipt of
any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of the Lenders the outstanding principal amount of the Loans made
to such Borrower on the Commitment Termination Date.
(b) Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender to such Borrower, including the amounts of
principal and interest payable and paid to such Lender by such Borrower from time to time
hereunder.
(c) Maintenance of Loan Accounts by Administrative Agent. The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each Loan made to a Borrower
hereunder, the Type thereof and each Interest Period therefor, (ii) the amount of any principal or
interest due and payable or to become due and payable from any
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Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the
Lenders and each Lenders share thereof.
(d) Effect of Entries. 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 Borrowers to repay the Loans in accordance with the terms of this
Agreement. In the event of any conflict between the records of the Administrative Agent and the
records of a Lender, the records of the Administrative Agent shall control absent manifest error.
(e) Promissory Notes. Any Lender may request that Loans made by it to any Borrower be
evidenced by a promissory note. In such event, such Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) substantially in the form of Exhibit C or any other form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.08. Prepayment of Loans.
(a) Optional Prepayments. Each applicable Borrower shall have the right at any time
and from time to time to prepay any Borrowing made to such Borrower in whole or in part, subject to
the requirements of paragraph (b) of this Section.
(b) Notices, Etc. The applicable Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of any
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the
date of prepayment (which shall be a Business Day) or (ii) in the case of prepayment of any ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment (which shall be a Business Day). Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Commitments as contemplated by Section 2.06, then such
notice of prepayment may be revoked if such notice of termination is revoked in accordance with
Section 2.06. Promptly following receipt of any such notice relating to a Borrowing, the
Administrative Agent shall advise the Lenders of the contents thereof. Each partial optional
prepayment of any Borrowing shall be in an amount that would be permitted in the case 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, together with amounts, if any, payable
pursuant to Section 2.13.
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SECTION 2.09. Fees.
(a) Ticking Fees. The Company agrees to pay to the Administrative Agent for account
of each Lender a ticking fee, which shall accrue at a rate per annum equal to the Applicable Rate
on the amount of the Commitment of such Lender during the period from and including the Effective
Date to but excluding the earlier of the date on which such Commitment terminates and the Closing
Date. Accrued ticking fees shall be payable on each Quarterly Payment Date and on the earlier of
the Closing Date and the date on which the Commitment terminates, commencing on the first such date
to occur after the Effective Date.
(b) Commitment Fees. The Company agrees to pay to the Administrative Agent for
account of each Lender a commitment fee, which shall accrue at a rate per annum equal to the
Applicable Rate on the average daily unused amount of the Commitment of such Lender during the
period from and including the Closing Date to but excluding the earlier of the date such Commitment
terminates or the Commitment Termination Date. Accrued commitment fees shall be payable on each
Quarterly Payment Date and on the earlier of the date on which the Commitment terminates and the
Commitment Termination Date, commencing on the first such date to occur after the Closing Date.
(c) Administrative Agent Fees. The Company agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between
the Company and the Administrative Agent.
(d) Payment of Fees; Computation of Fees. All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the Administrative Agent for distribution, in the
case of commitment or ticking fees, to the Lenders entitled thereto. Fees paid shall not be
refundable under any circumstances. All fees payable under paragraph (a) or (b) of this Section
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
SECTION 2.10. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing plus the Applicable Rate.
(c) Default Interest. If any amount of principal of any Loan, interest or any other
amount payable by any Loan Party under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Without duplication of amounts payable under the
preceding sentence, while any Event of Default pursuant to clause (g) or (h) of Article VII exists
and, upon request by the Required Lenders, while any other Event of Default exists, the applicable
Borrower shall pay interest on the principal amount of all outstanding Loans made to such Borrower
at a rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
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(d) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the Commitments; provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Loan prior to the Commitment Termination Date), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any
conversion of any Eurodollar Borrowing prior to the end of the Interest Period therefor, accrued
interest on such Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on 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 Alternate Base Rate
or Adjusted LIBO Rate shall 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 the 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
Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
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 Company and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the
Company 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 an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender; or
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(iii) subject any Recipient to any Taxes (other than (A) FATCA, (B) Indemnified Taxes
and (C) Other Connection Taxes on gross or net income, profits, franchise or revenues or
taxes in lieu thereof (including value-added or similar Taxes)) on its Loans (including
principal amount thereof), Commitments or other obligations hereunder, or its deposits,
reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lenders or such other
Recipient of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make
any such Loan) or to reduce the amount of any sum received or receivable by such Lender or such
other Recipient hereunder (whether of principal, interest or otherwise), then the Company will pay
to such Lender or such other Recipient, as the case may be, such additional amount or amounts as
will compensate such Lender or such other Recipient, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return on such Lenders
capital or on the capital of such Lenders holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such Lender or such Lenders
holding company could have achieved but for such Change in Law (taking into consideration such
Lenders policies and the policies of such Lenders holding company with respect to capital
adequacy), then from time to time the Company will pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lenders holding company for any such reduction
suffered.
(c) Certificates from Lenders. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Company and
shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such Lenders right to
demand such compensation; provided that the Company shall not be required to compensate a
Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lenders intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the
last day of an Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest Period therefor, (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 therewith), or (d) the assignment of any Eurodollar
Loan other than on the last day of
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an Interest Period therefor as a result of a request by the
Company pursuant to Section 2.16, then, in any such event, the applicable 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
determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that
such Lender would pay for a deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest 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
Dollar deposits 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 applicable Borrower and (if such
Borrower is not the Company) the Company and shall be conclusive absent manifest error. Such
Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.14. Taxes.
(a) Withholding of Taxes; Gross-Up. Each payment by any Loan Party under any Loan
Document shall be made without withholding for any Taxes, unless such
withholding is required by any Law. If any Withholding Agent determines, in its sole discretion exercised
in good faith, that it is so required to withhold Taxes, then such Withholding Agent may so
withhold and shall timely pay the full amount of withheld Taxes to the relevant Governmental
Authority in accordance with applicable Law. If such Taxes are Indemnified Taxes, then the amount
payable by such Loan Party shall be increased as necessary so that, net of such withholding
(including such withholding applicable to additional amounts payable under this Section), the
applicable Recipient receives the amount it would have received had no such withholding been made.
(b) Payment of Other Taxes by Loan Parties. Each Loan Party shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes by any Loan Party to a Governmental Authority, such Loan Party 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.
(d) Indemnification by Loan Parties. The Loan Parties shall jointly and severally
indemnify each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in
connection with any Loan Document (including amounts payable under this Section 2.14(d)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.14(d) shall be paid within 10 days
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after the Recipient delivers to
any Loan Party a certificate stating the amount of any Indemnified Taxes so payable by such
Recipient and describing the basis for the indemnification claim. Such certificate shall be
conclusive of the amount so payable absent manifest error. Such Recipient shall deliver a copy of
such certificate to the Administrative Agent. In the case of any Lender making a claim under this
Section 2.14(d) on behalf of any of its beneficial owners, an indemnity payment under this Section
2.14(d) shall be due only to the extent that such Lender is able to establish that, with respect to
the applicable Indemnified Taxes, such beneficial owners supplied to the applicable Persons such
properly completed and executed documentation necessary to claim any applicable exemption from, or
reduction of, such Indemnified Taxes.
(e) Indemnification by Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent
that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Loan Parties to do so) and the Loan Parties for any
Excluded Taxes, in each case attributable to such Lender that are paid or payable by the
Administrative Agent or the applicable Loan Party (as applicable) in connection with any Loan
Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such
Taxes or Excluded Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. The indemnity under this Section 2.14(e) shall be paid within 10 days after the
Administrative Agent or the applicable Loan Party (as applicable) delivers to the applicable Lender
a certificate stating the amount of Taxes or Excluded Taxes so paid or payable by the
Administrative Agent or the applicable Loan Party (as applicable). Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under any Loan Document
shall deliver to the Company and the Administrative Agent, at the time such Lender becomes a Lender
hereunder or at times prescribed by Law or reasonably requested by the Company or the
Administrative Agent, such properly completed and executed documentation prescribed by Law or
reasonably requested by the Company or the Administrative Agent as will permit such payments to be
made without, or at a reduced rate of, withholding, unless a Change in Law prevents such Lender
from legally being able to complete, execute or deliver such form. In addition, any Lender, if
requested by the Company or the Administrative Agent, shall deliver such other documentation
prescribed by Law or reasonably requested by the Company or the Administrative Agent as will enable
the applicable Borrower or the Administrative Agent to determine whether or not such Lender is
subject to any withholding (including backup withholding) or information reporting requirements.
Upon the reasonable request of the Company or the Administrative Agent, any Lender shall update any
form or certification previously delivered pursuant to this Section 2.14(f). If any form or
certification previously delivered pursuant to this Section expires or becomes obsolete or
inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event
within 10 days after such expiration, obsolescence or inaccuracy) notify the Company and the
Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form
or certification if it is legally eligible to do so.
(ii) Without limiting the generality of the foregoing, if any Loan Party is a U.S. Person, any
Lender with respect to such Loan Party shall, if it is legally eligible to do so,
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deliver to such
Loan Party and the Administrative Agent (in such number of copies reasonably requested by such Loan
Party and the Administrative Agent) on or prior to the date on which such Lender becomes a party
hereto, duly completed and executed copies of whichever of the following is applicable:
(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such
Lender is exempt from U.S. Federal backup withholding tax;
(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to
which the United States is a party (1) with respect to payments of interest under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the interest article of such tax treaty and (2) with respect
to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the business
profits or other income article of such tax treaty;
(C) in the case of a Non-U.S. Lender for whom payments under the Loan Documents
constitute income that is effectively connected with such Lenders conduct of a trade or
business in the United States, IRS Form W-8ECI;
(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a
certificate substantially in the applicable form attached as part of Exhibit
D (a U.S. Tax Certificate) to the effect that such Lender is not (a) a bank
within the meaning of Section 881(c)(3)(A) of the Code, (b) a 10 percent shareholder of
the Company within the meaning of Section 881(c)(3)(B) of the Code (c) a controlled foreign
corporation described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or
business in the United States with which the relevant interest payments are effectively
connected;
(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made
under this Agreement (including a partnership or a participating Lender) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C),
(D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner
or partner of such partnership if such beneficial owner or partner were a Lender;
provided, however, that if such Lender is a partnership and one or more of
its partners are claiming the exemption for portfolio interest under Section 881(c) of the
Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or
(F) any other form prescribed by Law as a basis for claiming exemption from, or a
reduction of, U.S. Federal withholding Tax together with such supplementary documentation
necessary to enable the applicable Loan Party or the Administrative Agent to determine the
amount of Tax (if any) required by Law to be withheld.
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(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times
prescribed by Law and at such time or times reasonably requested by the Withholding Agent, such
documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Withholding Agent as may be
necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that
such Lender has or has not complied with such Lenders obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this Section 2.14(f)(iii),
FATCA shall include any amendments made to FATCA after the date of this Agreement.
(g) Treatment of Certain Refunds. If any Lender or the Administrative Agent
reasonably determines that it has received a refund, in cash or applied as an offset against other
cash tax liability, of any Taxes as to which it has been indemnified pursuant to this Section
(including additional amounts paid pursuant to this Section), such indemnified party shall pay to
the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments
made under this Section with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid to such indemnifying party pursuant to the previous sentence (plus any
interest imposed by the relevant Governmental Authority) in the event
such indemnified party is required to repay such refund to such Governmental Authority.
Notwithstanding anything to the contrary in this Section 2.14(g), in no event will any indemnified
party be required to pay any amount to any indemnifying party pursuant to this Section 2.14(g) to
the extent such payment would place such indemnified party in a less favorable position (on a net
after-Tax basis) than such indemnified party would have been in if the indemnification payments or
additional amounts giving rise to such refund had never been paid. This Section 2.14(g) shall not
be construed to require any indemnified party to make available its Tax returns (or any other
information relating to its Taxes which it deems confidential) to the indemnifying party or any
other Person.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Payments by Borrowers. Each Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest or fees, or under Section 2.12, 2.13 or 2.14, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, 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 the Administrative Agents Office, except that payments pursuant to
Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt
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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) Application of Insufficient Payments. 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, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, to pay principal then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.
(c) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon then due than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not
be construed to apply to any payment made by any Loan Party 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 Company or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of such Loan Party
in the amount of such participation.
(d) Presumptions of Payment. Unless the Administrative Agent shall have received
notice (which notice shall be effective upon receipt) from the applicable Borrower prior to the
date on which any payment is due to the Administrative Agent for account of the Lenders hereunder
that such Borrower will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the applicable 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.
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(e) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(b), 2.15(d) or 9.03(c), then the
Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i)
apply any amounts thereafter received by the Administrative Agent for the account of such Lender
and for the benefit of the Administrative Agent to satisfy such Lenders obligations under such
Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts
in a segregated account as cash collateral for, and application to, any future funding obligations
of such Lender under such Sections, in the case of each of clauses (i) and (ii) above, in any order
as determined by the Administrative Agent in its discretion.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.12, or if any Loan Party is required to pay any additional amount to any Lender or
any Governmental Authority for account of any Lender pursuant to Section 2.14, then such Lender
shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any
such designation or assignment.
(b) Replacement of Lenders. If (i) any Lender requests compensation under Section
2.12, (ii) any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for account of any Lender pursuant to Section 2.14 or (iii) any Lender
becomes a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse, 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 (A) such assignment shall be effected in accordance with and
subject to the restrictions contained in Section 9.04 and such assignee (if not a Lender) shall
have been approved by the Administrative Agent (which approval shall not unreasonably be withheld),
(B) 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
Company (in the case of all other amounts), (C) with respect to an assignment as a result of clause
(iii) above, the assignment fee shall be paid to the Administrative Agent by the Company and (D) in
the case of any such assignment resulting from a claim for compensation under Section 2.12 or
payments required to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. 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 Company to require such assignment and delegation cease to apply.
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SECTION 2.17. Increase in Commitments. The Company may, at any time after the Closing Date by notice to the Administrative Agent,
propose an increase in the total Commitments hereunder (each such proposed increase being a
Commitment Increase) either by having a Lender increase its Commitment then in effect
(each an Increasing Lender) or by having a Person which is not then a Lender become a
party hereto as a Lender with a new Commitment hereunder (each an Assuming Lender), in
each case, with the approval of the Administrative Agent (not to be unreasonably withheld). Such
notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable,
(ii) the amount of the Commitment Increase and the portion thereof being committed to by each such
Increasing Lender or Assuming Lender and (iii) the date on which such Commitment Increase is to be
effective (a Commitment Increase Date) (which shall be a Business Day at least five
Business Days after delivery of such notice and 30 days prior to the Commitment Termination Date).
Each Commitment Increase shall be subject to the following additional conditions:
(i) unless the Administrative Agent otherwise agrees, the Commitment of any Assuming
Lender as part of any Commitment Increase shall be in a minimum amount of at least
$25,000,000;
(ii) unless the Administrative Agent otherwise agrees, each Commitment Increase shall
be in an amount of at least $25,000,000;
(iii) immediately after giving effect to any Commitment Increase, the total Commitments
hereunder shall not exceed $2,000,000,000;
(iv) no Default has occurred and is continuing on the relevant Commitment Increase Date
or shall result from any Commitment Increase; and
(v) the representations and warranties of the Loan Parties set forth in this Agreement
and the other Loan Documents shall be true and correct in all material respects (or, in the
case of such representations and warranties qualified as to materiality, in all respects) on
and as of the relevant Commitment Increase Date as if made on and as of such date (or, if
any such representation or warranty is expressly stated to have been made as of a specific
date, as of such specific date).
Each Commitment Increase (and the increase of the Commitment of each Increasing Lender and/or
the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become
effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on
or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate
of a Responsible Officer stating that the conditions with respect to such Commitment Increase under
this Section have been satisfied and (b) an agreement, in form and substance satisfactory to the
Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase
Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its
Commitment (or an increase of its Commitment, as applicable), duly executed by each such Lender and
the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agents
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receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender,
together with such certificate of such Responsible Officer, the Administrative Agent shall record
the information contained in such agreement in the Register and give prompt notice of the relevant
Commitment Increase to the Company and the Lenders (including, if applicable, each Assuming
Lender). On each Commitment Increase Date, if there are Loans then outstanding, each applicable
Borrower shall simultaneously (i) prepay in full the outstanding Loans made to such Borrower
immediately prior to giving effect to the relevant Commitment Increase in accordance with Section
2.08 and (ii) at such Borrowers option in accordance with this Agreement, such Borrower may
request to borrow new Loans from all the Lenders (including, if applicable, any Assuming Lender)
such that, after giving effect thereto, the Loans are held ratably by the Lenders in accordance
with their respective Commitments (after giving effect to such Commitment Increase).
Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree
to increase its Commitment hereunder and any election to do so shall be in the sole discretion of
such Lender.
SECTION 2.18. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender: (a) fees shall cease to accrue on the unused amount of the Commitment of such
Defaulting Lender pursuant to Section 2.09(a) or (b), as applicable; and (b) the Commitment and
Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether
all Lenders or the Required Lenders have taken or may take any action hereunder (including any
consent to any amendment or waiver pursuant to Section 9.02), except that (i) the Commitment of any
Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any
waiver, amendment or other modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender. In the event that the Administrative Agent
and the Company each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then on such date such Lender shall purchase at par
such of the Loans then outstanding of the other Lenders as the Administrative Agent shall determine
may be necessary in order for such Lender to hold such Loans in accordance with its Applicable
Percentage, whereupon such Lender shall no longer be a Defaulting Lender.
SECTION 2.19. Designation of Subsidiary Borrowers. (a) Designation of Subsidiary Borrowers. Subject to the terms and conditions of
this Section, the Company may, at any time or from time to time after the Closing Date upon not
less than 10 Business Days notice to the Administrative Agent (or such shorter period which is
acceptable to the Administrative Agent), designate a wholly-owned, direct or indirect Domestic
Subsidiary of the Company to become a party to this Agreement as a Subsidiary Borrower;
provided that each such designation shall be subject to the prior approval of the
Administrative Agent (which approval shall not be unreasonably withheld). Upon receipt of such
notice under this Section, the Administrative Agent shall promptly notify each Lender thereof.
Upon such approval and the satisfaction of the conditions specified in paragraph (b) of this
Section, such Subsidiary shall become a party to this Agreement as a Subsidiary Borrower hereunder
and shall be entitled to borrow Loans on and subject to the terms and conditions of this Agreement,
and the Administrative Agent shall
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promptly notify the Lenders of the effectiveness of such
designation. Following the giving of any notice pursuant to this Section, if the designation of
such Subsidiary Borrower obligates the Administrative Agent or any Lender to comply with know your
customer or similar identification procedures in circumstances where the necessary information is
not already available to it, the Company shall, promptly upon the request of the Administrative
Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the
Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry
out and be satisfied it has complied with the results of all necessary know your customer or
other similar checks under all applicable Laws and regulations.
(b) Conditions Precedent to Designation. The designation by the Company of any
Subsidiary as a Subsidiary Borrower hereunder shall not become effective until the date on which
the Administrative Agent shall have received each of the following documents (each of which shall
be satisfactory to the Administrative Agent in form and substance): (i) a Subsidiary Borrower
Designation, duly completed and executed by the Company and such Subsidiary,
delivered to the Administrative Agent at least 5 Business Days before the date on which such
Subsidiary is proposed to become a Subsidiary Borrower; (ii) a favorable written opinion (addressed
to the Administrative Agent and the Lenders and appropriately dated) of external or internal
counsel to such Subsidiary satisfactory to the Administrative Agent (and the Company and such
Subsidiary Borrower hereby, and by delivery of such Subsidiary Borrower Designation, instruct such
counsel to deliver such opinion to the Administrative Agent and the Lenders), as to such matters as
are consistent with the scope of the opinion of counsel to the Company delivered pursuant to
Section 4.02(j) and/or such other matters as the Administrative Agent may reasonably request; and
(iii) such documents and certificates as the Administrative Agent may reasonably request in
connection therewith (including certified copies of the Organization Documents of such Subsidiary
and of resolutions of its board of directors or similar governing body authorizing such Subsidiary
becoming a Borrower hereunder, and of all documents evidencing all other necessary corporate or
other action required with respect to such Subsidiary Borrower becoming party to this Agreement).
(c) Termination of Subsidiary Borrower. So long as there shall be no Loans
outstanding to a Subsidiary Borrower or other amounts owing hereunder or under the other Loan
Documents by such Subsidiary Borrower (or any pending Borrowing Request by such Subsidiary
Borrower), the Company may elect to terminate such Subsidiary Borrower as a Borrower hereunder by
delivering to the Administrative Agent a notice substantially in the form of Exhibit B-2 or any
other form approved by the Administrative Agent (each a Subsidiary Borrower Termination
Notice), duly completed and executed. Any Subsidiary Borrower Termination Notice furnished
hereunder shall be effective upon receipt thereof by the Administrative Agent (which shall promptly
so notify the Lenders), whereupon all commitments of the Lenders to make Loans to such Subsidiary
Borrower and the rights of such Subsidiary Borrower to borrow hereunder shall terminate and such
Subsidiary Borrower shall immediately cease to be a Borrower hereunder and a party hereto;
provided that, notwithstanding anything herein to the contrary, the delivery of a
Subsidiary Borrower Termination Notice with respect to any Subsidiary Borrower shall not terminate
or discharge (i) any obligation of such Subsidiary Borrower that remains unpaid at such time or
(ii) the obligations of the Company under Article X with respect to any such unpaid obligations.
Notwithstanding anything herein to the contrary, upon the occurrence of any event described in
clause (g) or (h) of Article VII with respect to any
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Subsidiary Borrower, or if at any time any
Subsidiary Borrower shall cease to be a wholly-owned, direct or indirect Domestic Subsidiary of the
Company, (i) all commitments of the Lenders to make Loans to such Subsidiary Borrower and the
rights of such Subsidiary Borrower to borrow hereunder shall automatically terminate and such
Subsidiary Borrower shall immediately cease to be a Subsidiary Borrower hereunder and a party
hereto and (ii) the principal amount then outstanding of, and the accrued interest on, the Loans
(if any) made to such Subsidiary Borrower and all other amounts payable by such Subsidiary Borrower
hereunder (including any amounts payable under Section 2.13) and under the other Loan Documents
shall automatically become immediately due and payable, in each case, without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly waived by such
Subsidiary Borrower and the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and (with respect to Section 3.15 only and to the extent provided therein) each
Subsidiary Borrower (if any) represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and its Designated Subsidiaries (a) is duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite
power and authority to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c) above, to the
extent that failure to do so could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each Loan Document to which
it is a party have been duly authorized by all necessary corporate or other organizational action.
Each Loan Document to which each Loan Party is a party has been duly executed and delivered by such
Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting creditors rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Authorizations. No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document, except such as have been obtained or made and are in full force and
effect.
SECTION 3.04. No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which
such Loan Party is a party do not and will not (a) contravene the terms of any of such Loan Partys
Organization Documents; (b) conflict
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with or result in any breach or contravention of, or the
creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation
to which such Loan Party is a party or affecting such Loan Party or the properties of such Loan
Party or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental
Authority or any arbitral award to which such Loan Party or its property is subject; or (c) violate
any Law, except, in the case of clauses (b) and (c) above, to the extent such violations or
defaults, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Change.
SECTION 3.05. Financial Statements; No Material Adverse Change.
(a) Financial Statements. The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, equity and cash flows (i) as of and for the
fiscal years ended December 31, 2008 and December 31, 2009, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended September 30, 2010 certified by the Companys chief financial officer. Such
financial statements present fairly, in all material respects, the financial position and results
of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) No Material Adverse Change. Since December 31, 2009, there has been no event,
development or circumstance that has had or could reasonably be expected to result in a Material
Adverse Change (except for Disclosed Matters).
SECTION 3.06. Properties. Each of the Company and its Designated Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, subject only to Liens
permitted by Section 6.02 and, except for defects in title or leasehold interests that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.07. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. Except for Disclosed Matters and Disclosed Tax
Matters, there are no actions, suits, proceedings, claims, disputes or investigations pending or,
to the knowledge of the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Designated Subsidiaries or against
any of their properties or revenues that (i) either individually or in the aggregate, if determined
adversely, could reasonably be expected to result in a Material Adverse Change or (ii) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby.
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(b) Environmental Matters. Except for Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change, neither the Company nor any of its Designated Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with respect to any
Environmental Liability or (iv) knows of any conditions or circumstances that could reasonably be
expected to result in any Environmental Liability.
(c) Change in Disclosed Matters. Since November 5, 2010, there has been no change in
the status of Disclosed Matters and Disclosed Tax Matters that, individually or in the aggregate,
has resulted in, or could reasonably be expected to result in, a Material Adverse Change.
SECTION 3.08. Compliance with Laws. Each of the Company and its Designated Subsidiaries is in compliance with all Laws
(including any Environmental Laws) and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Change.
SECTION 3.09. No Default. Neither the Company nor any of its Designated Subsidiaries is in default under or with
respect to any Contractual Obligation that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Change. No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
SECTION 3.10. Investment Company Status. None of the Borrowers is and, after application of the proceeds of the Loans, will be an
investment company as defined in, or subject to regulation under, the Investment Company Act of
1940.
SECTION 3.11. Taxes. Except for Disclosed Tax Matters, each of the Company and its Designated Subsidiaries has
timely filed or caused to be filed all Federal income tax returns and all other material tax
returns and reports required to have been filed and has paid or caused to be paid all taxes
required to have been paid by it, except (a) taxes for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Change.
SECTION 3.12. ERISA. (a) Each of the Company and its ERISA Affiliates is in compliance in all material respects
with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder as they relate to each Plan. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Company or any of its ERISA
Affiliates. The present value of all benefit liabilities of all underfunded Plans (determined
based on the projected benefit obligation with respect to such underfunded Plans based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the last annual valuation dates applicable thereto, exceed by more than $300,000,000 the fair
market value of the assets of all such underfunded Plans.
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(b) Each Foreign Pension Plan is in compliance in all material respects with all requirements
of Law applicable thereto and the respective requirements of the governing documents for such plan.
With respect to each Foreign Pension Plan, none of the Company, its Affiliates or any of their
respective directors, officers, employees or agents has engaged in a transaction that would subject
the Company or any Subsidiary, directly or indirectly, to a tax or civil penalty that could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
With respect to each Foreign Pension Plan, reserves have been established in the financial
statements furnished to the Lender in respect of any unfunded liabilities in accordance with
applicable Law and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The
aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be
expected to result in a Material Adverse Change. The present value of the aggregate accumulated
benefit liabilities of all such Foreign Pension Plans (based on those assumptions used to fund each
such Foreign Pension Plan) did not, as of the last annual valuation date applicable thereto, exceed
by more than $900,000,000 the fair market value of the assets held in trust under all such Foreign
Pension Plans.
SECTION 3.13. Disclosure. None of the reports, financial statements, certificates or other information furnished by
or on behalf of the Company or any of its Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement and the other Loan Documents or delivered
hereunder or thereunder (as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading as
of the date made; provided that, with respect to projected or pro forma financial
information, the Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time furnished (it being understood that such
projections and forecasts are subject to uncertainties and contingencies and no assurances can be
given that such projections or forecasts will be realized).
SECTION 3.14. Margin Regulations. No Loan Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying
or carrying Margin Stock, and no part of the proceeds of any Loan hereunder will be used to buy or
carry any Margin Stock. Following the application of the proceeds of each Borrowing,
not more than 25% of the value of the assets of any of the Loan Parties shall consist of
Margin Stock.
SECTION 3.15. Certain Representations by Subsidiary Borrowers. Each Subsidiary Borrower severally represents and warrants that the representations and
warranties set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.06, 3.07, 3.08, 3.09, 3.10, 3.11 and
3.14 with respect to itself and (if applicable) its Subsidiaries are true and correct in all
material respects (or, in the case of any such representations and warranties qualified as to
materiality, in all respects).
SECTION 3.16. Sanctioned Persons. None of the Company or any Subsidiary nor, to the knowledge of the Company, any director or
officer of the Company or any Subsidiary is currently the target of any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and no
Borrower will directly or indirectly use the
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proceeds of the Loans or otherwise make available such
proceeds to any Person, for the purpose of financing the activities of any Person currently subject
to any U.S. sanctions administered by OFAC.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. This Agreement (other than Articles V and VI, except for such provisions thereof that shall
be effective from and after the Effective Date as expressly set forth in the introductory language
of Article V) shall become effective on the date (which shall not be later than December 31, 2010)
(the Effective Date) on which each of the following conditions shall be satisfied to the
satisfaction of the Administrative Agent (or waived in accordance with Section 9.02):
(a) Executed Counterparts of this Agreement. The Administrative Agent shall
have received from each of the Company, the Lenders and the Administrative Agent a
counterpart of this Agreement signed on behalf of such party (or written evidence
satisfactory to the Administrative Agent, which may include telecopy or electronic
transmission of a signed signature page to this Agreement, that such party has signed a
counterpart of this Agreement).
(b) Effectiveness of Other Credit Agreement. The Administrative Agent shall
have received evidence that the Other Credit Agreement shall have become effective to the
extent provided therein concurrently with the effectiveness of this Agreement.
(c) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole (except
for Disclosed Matters).
(d) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Company,
the authorization of the Transactions and any other legal matters relating to the Company,
the Loan Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent.
(e) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Responsible Officer, confirming
satisfaction of each of the conditions set forth in this Section.
(f) Fees and Expenses. The Company shall have paid to the Administrative Agent
for the account of the respective person or persons entitled thereto all such fees and
expenses as it shall have agreed in writing to pay to the Agents, the Lenders and the Joint
Lead Arrangers in connection herewith (including (i) the upfront fees then payable by the
Company to the Lenders and (ii) the reasonable fees and expenses of Milbank,
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Tweed, Hadley &
McCloy LLP, special New York counsel to the Administrative Agent) that are due and payable
on or prior to the Effective Date (and, with respect to such expenses, for which invoices
have been presented to the Company prior to the Effective Date).
(g) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent shall reasonably request.
The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
Notwithstanding anything herein to the contrary, the obligations of the Lenders to make Loans
hereunder shall not become effective unless and until the conditions specified in Section 4.02
shall be satisfied or waived in accordance therewith.
SECTION 4.02. Closing Date. The obligations of the Lenders to make Loans hereunder and the provisions of Articles V and
VI (to the extent such provisions shall not have become effective as of the Effective Date pursuant
to Section 4.01) shall become effective on the date (which shall not be later than March 31, 2011)
(the Closing Date) on which each of the following conditions shall be satisfied to the
satisfaction of the Administrative Agent (or waived in accordance with Section 9.02):
(a) Effective Date. The Effective Date shall have occurred.
(b) Repayment of Amounts under FRBNY Credit Agreement. The Administrative
Agent shall have received evidence that (i) the principal of and interest on outstanding
loans, and all accrued fees and all other amounts owing, under the FRBNY
Credit Agreement shall have been (or shall be simultaneously) paid in full, (ii) all
commitments to extend credit thereunder shall have been terminated and (iii) all Guarantees
in respect of, and all Liens securing, any such Indebtedness and any other obligations
thereunder shall have been released (except for any provisions of the FRBNY Credit Agreement
relating to indemnities and tax gross-up that expressly provide for the survival of
obligations thereunder, which shall continue in effect).
(c) AIG FP. The Administrative Agent and the Joint Lead Arrangers shall have
received satisfactory evidence that the aggregate contingent liquidity requirements of AIG
FP (as described in the chart entitled AIG-FP Contingent Liquidity Tracker as of 12/7/2010
distributed to the Lenders prior to the date hereof) shall not be greater than
$2,800,000,000 as of the Closing Date.
(d) Financial Statements. To the extent publicly available prior to the
Closing Date, the Company shall have furnished to the Administrative Agent and the Lenders
(or made available to them without charge and with notice by posting to the Companys
website) the Companys audited consolidated balance sheet and statements of income, equity
and cash flows as of and for the fiscal year ended December 31, 2010, reported on by
PricewaterhouseCoopers LLP, independent public accountants, in accordance with Section
5.01(a).
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(e) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole (except for Disclosed
Matters).
(f) Index Debt Ratings. The Index Debt Ratings (and the outlook thereof) from
each of S&P and Moodys as in effect on the Closing Date shall not be lower than the Index
Debt Ratings (and the outlook thereof) from such rating agencies as in effect on October 15,
2010 and as set forth on Schedule 4.02(f); provided, however, that the
condition in this Section 4.02(f) shall be satisfied if the Index Debt Rating in effect on
the Closing Date for either Moodys or S&P (but not both Moodys and S&P) shall fall not
more than one rating level.
(g) Bringdown of Representations and Warranties; and Absence of Default. (i)
The representations and warranties of the Company set forth in this Agreement and the other
Loan Documents shall be true and correct in all material respects (or, in the case of any
such representations and warranties qualified as to materiality, in all respects) on and as
of the Closing Date (or, if any such representation or warranty is expressly stated to have
been made as of a specified date, as of such specified date); and (ii) as of the Closing
Date, no Default shall have occurred and be continuing.
(h) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer, confirming
compliance with the conditions set forth in this Section and the Index Debt Ratings (and the
outlook thereof) as then in effect.
(i) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Loan
Parties, the authorization of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent.
(j) Opinion of Counsel to Company. The Administrative Agent shall have
received one or more favorable written opinions (addressed to the Administrative Agent and
the Lenders and dated the Closing Date) of counsel to the Company (which may include the
general counsel or other internal counsel of the Company satisfactory to the Administrative
Agent), in form and substance reasonably satisfactory to the Agents (and the Company hereby
instructs such counsel to deliver such opinion(s)).
(k) Opinion of Special New York Counsel to Administrative Agent. The
Administrative Agent shall have received an opinion (addressed to the Administrative Agent
and the Lenders and dated the Closing Date) of Milbank, Tweed, Hadley & McCloy LLP, special
New York counsel to JPMCB as Administrative Agent, in form and substance satisfactory to the
Agents (and JPMCB hereby instructs such counsel to deliver such opinion).
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(l) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent may reasonably request.
(m) Fees and Expenses. The Company shall have paid to the Administrative Agent
on the Closing Date for the account of the respective person or persons entitled thereto all
such fees and expenses as it shall have agreed in writing to pay to the Agents, the Lenders
and the Joint Lead Arrangers in connection herewith (including (i) the upfront fees then
payable by the Company to the Lenders and (ii) the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to the Administrative Agent) that are
due and payable on or prior to the Closing Date (and, with respect to such expenses, for
which invoices have been presented to the Company prior to the Closing Date).
The Administrative Agent shall notify the Company and the Lenders of the Closing Date, and
such notice shall be conclusive and binding.
SECTION 4.03. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to
the satisfaction of the following conditions (in addition to the satisfaction of the conditions
under Section 4.02 in the case of the initial Borrowing hereunder):
(a) the representations and warranties of the Company and each Subsidiary Borrower (if
any) set forth in this Agreement and the other Loan Documents (excluding, except in the case
of any Borrowing on the Closing Date, those representations and warranties contained in
Section 3.05(b) (but only as to clauses (a) and (b) of the definition of Material Adverse
Change) and Section 3.07(a) and (c)) shall be true and
correct in all material respects (or, in the case of any such representations and
warranties qualified as to materiality, in all respects) on and as of the date of such
Borrowing (or, if any such representation or warranty is expressly stated to have been made
as of a specified date, as of such specified date); and
(b) at the time of and immediately after giving effect to such Borrowing, no Default
shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by the Company on the
date thereof as to the matters specified in clauses (a) and (b) of the preceding sentence and (if
applicable) by the applicable Subsidiary Borrower of its representations and warranties set forth
in Section 3.15.
ARTICLE V
AFFIRMATIVE COVENANTS
From the Closing Date (except, in the case of Sections 5.01 and 5.02, from the Effective Date)
and until the Commitments have expired or been terminated and the principal of and interest on each
Loan and all fees payable hereunder shall have been paid in full, the Company covenants and agrees
with the Lenders that:
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SECTION 5.01. Financial Statements and Other Information. The Company will furnish to the Administrative Agent (which shall promptly provide to each
Lender):
(a) within 90 days after the end of each fiscal year of the Company (or, if earlier,
within five Business Days after the Company shall have filed such financial statements with
the SEC), the audited consolidated balance sheets and related audited consolidated
statements of operations, stockholders equity and cash flows of the Company and its
Subsidiaries, in each case as of the end of and for such fiscal year, setting forth in each
case in comparative form the figures for (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing (without a going concern or
like qualification or exception and without any qualification or exception as to the scope
of such audit) to the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of the Company and
its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company (or, if earlier, within five Business Days after the Company
shall have filed such financial statements with the SEC), the unaudited consolidated balance
sheets and related unaudited statements of operations, stockholders equity and cash flows
of the Company and its Subsidiaries, in each case as of the end of and for such fiscal
quarter, setting forth in each case in comparative form the figures for (or, in the case of
the balance sheet, as of the end of) the corresponding period or periods
of the previous fiscal year, in each case certified by a Financial Officer as
presenting fairly in all material respects the financial condition and results of operations
of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer in form reasonably satisfactory to the
Administrative Agent (i) certifying that no Default has occurred or, if such a Default has
occurred, specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto, (ii) setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with the covenants
contained in Section 6.09 (and, if relevant, providing the information contemplated in the
parenthetical clause of such section) and (iii) specifying any changes to the list of
Designated Subsidiaries and Material Subsidiaries as of the last day of the fiscal period to
which such financial statements relate;
(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any Subsidiary with
the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or
any national securities exchange, or distributed to its shareholders generally, as the case
may be;
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(e) not later than January 31, 2011, a complete and correct list (in detail reasonably
satisfactory to the Administrative Agent) of Priority Indebtedness of the Company and each
Material Subsidiary (other than AIG FP) permitted under Section 6.01(b) (other than
Indebtedness excluded in the first parenthetical clause of the proviso to Section
6.01(b)(i)), in each case, existing as of the Effective Date and, with respect to any
particular such Indebtedness, in a principal amount of at least $25,000,000; and
(f) promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any Material Subsidiary, or compliance with the terms of
the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (d) (to the extent any
such documents are included in materials otherwise filed with the SEC) may be delivered
electronically by posting on an Internet website, and, if so delivered, shall be deemed to have
been furnished by the Company to the Administrative Agent (and by the Administrative Agent to the
Lenders) on the date (i) on which such materials are publicly available as posted on the Electronic
Data Gathering, Analysis and Retrieval system (EDGAR) or (ii) on which such documents are posted on
the Companys behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access without charge (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (A) the Company shall
deliver paper copies of such documents to the Administrative Agent or any Lender upon its request
to the Company to deliver such paper copies until a written request to cease delivering paper
copies is given by the Administrative Agent or such Lender and (B) the Company shall notify the
Administrative Agent and each Lender (by telecopier or electronic mail) of the posting of any such
documents delivered pursuant to Section 5.01(a) or (b) and provide to the Administrative Agent by
electronic mail electronic versions (i.e., soft copies) of such documents. The
Administrative Agent shall have no obligation to request the delivery of or to maintain paper
copies of the documents referred to above, and in any event shall have no responsibility to monitor
compliance by the Company with any such request by a Lender for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.
SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent (which shall promptly provide to each Lender) prompt written notice of the
following :
(a) any occurrence of any Default;
(b) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $500,000,000;
(c) any change in the Companys Index Debt Ratings from S&P and Moodys, or the
placement by S&P or Moodys of the Company on a CreditWatch or WatchList or any similar
list, in each case with negative implications, or its cessation of, or its intent to cease,
rating the Companys debt; or
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(d) any development that has resulted in, or could reasonably be expected to result in,
a Material Adverse Change.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible
Officer setting forth the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Designated Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect (a) its legal existence and (b) the rights, licenses, permits,
privileges and franchises material to the conduct of its business, other than, in the case of
clause (b), the loss of which could not reasonably be expected to result in a Material Adverse
Change; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution (i) permitted under Section 6.03 or (ii) of any SPV that is a Designated
Subsidiary.
SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its
Designated Subsidiaries to, pay, before the same shall become delinquent or in default, its
obligations, including Tax liabilities, that, if not paid, could reasonably be expected to result
in a Material Adverse Change, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Company or such Designated Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP or SAP, as applicable,
and (c) the failure to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Change; provided that, for avoidance of doubt, solely with respect to
Taxes, an obligation shall be considered to be delinquent or in default for purposes of this
Section only if there has first been a notice and demand therefor (as defined in section 6303 of
the Code and similar provisions of Law) by a tax authority.
SECTION 5.05. Maintenance of Properties. The Company will, and will cause each of its
Designated Subsidiaries to, keep and maintain all property material to the conduct of its business
in good working order and condition (ordinary wear and tear excepted) and make all necessary
repairs thereto and renewals and replacements thereof, except, in each case, to the extent that
failure to do so could not be reasonably expected to result in a Material Adverse Change.
SECTION 5.06. Books and Records. The Company will, and will cause each of its
Designated Subsidiaries to, maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP or SAP, as applicable, consistently applied shall be made
of all financial transactions and matters involving the assets and business of the Company or such
Designated Subsidiary, as the case may be.
SECTION 5.07. Inspection Rights. The Company will, and will cause each of its
Designated Subsidiaries to, permit any representatives designated by any Agent and/or any Joint
Lead Arranger and (at any time a Default exists) any representatives reasonably designated by any
Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and other records reasonably requested (other than information subject to
confidentiality restrictions, insurance records and customer-related information), and
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to discuss its affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested. The Company shall pay the
reasonable costs and expenses of any such visit or inspection, but only if a Default exists at the
time thereof or is discovered as a result thereof (provided that the Company shall have no
responsibility for any such costs and expenses under any other circumstance).
SECTION 5.08. Compliance with Laws and Contractual Obligations. The Company will, and
will cause each of its Designated Subsidiaries to, comply with all Laws and orders of any
Governmental Authority applicable to it or its property (including Environmental Laws) and all
Contractual Obligations binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
SECTION 5.09. Insurance. The Company will, and will cause each of its Designated
Subsidiaries to, maintain with financially sound and reputable insurance companies that are not
Affiliates of the Company, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance compatible with the
following standards) as are customarily carried under similar circumstances by such other Persons.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be used for general
corporate purposes of the Company and its Subsidiaries (including, potentially, for commercial
paper backstop) not in contravention of any Law or any Loan Document.
ARTICLE VI
NEGATIVE COVENANTS
From the Closing Date and until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in full, the Company
covenants and agrees with the Lenders that:
SECTION 6.01. Priority Indebtedness. The Company will not, nor will it cause or
permit any of its Material Subsidiaries to, create, incur, assume or permit to exist any Priority
Indebtedness, except:
(a) Indebtedness of any Subsidiary Borrower incurred under the Loan Documents, and
Indebtedness of any Material Subsidiary (if any) party as a borrower under the Other Credit
Agreement;
(b) (i) Priority Indebtedness of the Company and/or any Material Subsidiary existing
on the Effective Date (provided that the aggregate principal amount of such existing
Priority Indebtedness (other than Indebtedness (x) permitted under any of the other clauses
(other than clause (o)) of this Section or (y) covered under clause (e) or (so long as the
aggregate principal amount of Priority Indebtedness of the Company and its Material
Subsidiaries constituting Operating Indebtedness as of the Effective Date is not
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greater than the aggregate principal amount of such Priority Indebtedness as of
September 30, 2010) clause (f) of the definition of Operating Indebtedness) shall not
exceed $2,313,000,000); (ii) if any Material Subsidiary shall become a Material Subsidiary
after the Effective Date, Priority Indebtedness of such Material Subsidiary existing on the
date such Material Subsidiary first becomes a Material Subsidiary; (iii) if any Material
Subsidiary ceases to be a Material Subsidiary and is subsequently redesignated as a Material
Subsidiary, Priority Indebtedness of such Material Subsidiary existing as of the date of
such redesignation (including, in the case of clauses (i), (ii) and (iii) above, any
Priority Indebtedness, including Guarantees, of any Material Subsidiary owing to the Company
or another Subsidiary); and (iv) any extensions, renewals, exchanges or replacements of any
such Indebtedness to the extent (A) the principal amount of such Indebtedness is not
increased (except by an amount equal to unpaid accrued interest and premium thereon plus
other reasonable fees and expenses incurred in connection with such extension, renewals or
replacement) and (B) such Indebtedness, if subordinated to the Obligations, remains so
subordinated on terms no less favorable to the Lenders;
(c) Indebtedness (including Guarantees) of any Material Subsidiary owing to the
Company or a Subsidiary of the Company incurred after the Effective Date; provided
that no such Indebtedness (other than such Indebtedness of AIG FP incurred in connection
with its winding down) shall be secured;
(d) obligations of any Material Subsidiary (i) to return collateral consisting of cash
or securities arising out of or in connection with the lending of the same or substantially
similar securities or (ii) to purchase securities arising out of or in connection with the
sale of the same or substantially similar securities, in each case in the ordinary course of
the business of such Material Subsidiary, in each case consistent with past practice;
(e) Indebtedness of the Company or any Material Subsidiary in respect of
securitizations of any of its assets (including notes or accounts receivable) entered into
in the ordinary course of business, which shall be secured by Liens solely on such
securitized assets (including (i) Guarantees issued in connection therewith and (ii)
repurchase obligations for breach of representations and indemnities);
(f) unsecured or secured Indebtedness of the Company or any Material Subsidiary in
respect of letters of credit issued on behalf of any Insurance Subsidiary for insurance
regulatory or reinsurance purposes;
(g) Indebtedness of a Person (other than the Company or any of its Affiliates) that is
consolidated on the balance sheet of the Company or any Material Subsidiary as a Variable
Interest Entity under Financial Accounting Standards Boards Interpretation No. 46R (or any
successor interpretations or amendments thereto and as affected by any subsequent relevant
pronouncements of the FASB or, if, and to the extent applicable, the SEC); provided
that the satisfaction of such Indebtedness is limited to the property of
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such Person (except for customary exceptions for fraud, misapplication of funds, breach
of representations and environmental indemnities);
(h) Indebtedness of any Material Subsidiary secured by Liens on any of its real
property (including investments in real property) and certain personal property related
thereto; provided that (i) the recourse of the holder of such Indebtedness (whether
direct or indirect and whether contingent or otherwise) under the instrument creating such
Liens or providing for such Indebtedness shall be limited to such real property and personal
property relating thereto; and (ii) such holder may not under the instrument creating such
Lien or providing for such Indebtedness collect by levy of execution or otherwise against
property of such Material Subsidiary (other than such real property and personal property
relating thereto directly securing such Indebtedness) if such Material Subsidiary fails to
pay such Indebtedness when due and such holder obtains a judgment with respect thereto,
except for recourse obligations that are customary in non-recourse real estate
transactions;
(i) unsecured letters of credit issued for the account of Chartis Inc. under the
Chartis Letter of Credit Agreement not exceeding an aggregate face amount of $2,000,000,000
(and any extensions, renewals, exchanges or replacements thereof to the extent the aggregate
face amount of such letters of credit thereunder shall not exceed $2,500,000,000);
(j) capital maintenance agreements, keep well agreements, support agreements and other
similar arrangements, whether or not constituting Indebtedness, provided by the Company or
any Material Subsidiary for the benefit of any Subsidiary of the Company;
(k) advances and extensions of credit to a Material Subsidiary by any Federal Home
Loan Bank;
(l) Indebtedness of International Lease Finance Corporation and its Subsidiaries;
provided that neither the Company nor any other Subsidiary shall provide any credit
support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) with respect to such Indebtedness;
(m) Indebtedness of the Company or any Material Subsidiary in respect of letters of
credit, bankers acceptances and/or loan facilities required to support the capital
requirements of Ascot Corporate Name Ltd., as a member of Lloyds of London;
(n) Indebtedness incurred by any Material Subsidiary in connection with ordinary
course operation of the affordable housing business of SAFG Retirement Services, Inc. and
its Subsidiaries, including (i) secured or unsecured letters of credit, (ii) operating
deficit loans funded through a Material Subsidiary, (iii) purchasing, making, owning,
managing and selling loans (with customary representations and guarantees, either
individually or in pools, in whole or in structured interests) and related ordinary course
lender activities (including foreclosure) and (iv) syndicator activities, including acting
as a general partner and/or guarantor of investment funds; and
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(o) additional Priority Indebtedness of the Company and/or any of its Material
Subsidiaries in an aggregate principal amount not to exceed $500,000,000 at any one time
outstanding.
SECTION 6.02. Liens. The Company will not, nor will it cause or permit any of its
Designated Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) (i) Liens of the Company existing on the Effective Date; and (ii) Liens of a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
Subsidiary and is subsequently redesignated as a Designated Subsidiary, Liens of such
Designated Subsidiary as of the date of such redesignation; provided that, in each
case, such Liens (A) shall secure only those obligations that they secure on the relevant
date and extensions, renewals, exchanges and replacements thereof permitted hereunder and
(B) shall not apply to any property of the Company or any Subsidiary other than the property
thereof covered by such Liens on the relevant date;
(b) any Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Designated Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition, (ii) such Lien does not apply to
any other property or assets of the Company or any Subsidiary and (iii) such Lien secures
only those obligations that it secures on the date of such acquisition;
(c) Liens for taxes, assessments and governmental charges not yet due or that are
being contested in compliance with Section 5.04;
(d) carriers, warehousemens, mechanics, materialmens, repairmens or other like
Liens arising in the ordinary course of business and securing obligations that are not due
and payable or that are being contested in compliance with Section 5.04;
(e) pledges and deposits made in the ordinary course of business in compliance with
workmens compensation, unemployment insurance and other social security Laws;
(f) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the business of the
Company or any Designated Subsidiary;
(h) Liens arising in the ordinary course of business on operating accounts (including
any related securities accounts) maintained by the Company or any Designated
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Subsidiary in the ordinary course of business, including bankers Liens and rights of
setoff arising in connection therewith;
(i) judgment Liens securing judgments not constituting an Event of Default under
Article VII;
(j) Liens securing Swap Contracts entered into in the ordinary course of business and
not for speculative purposes and consistent with prudent business practice to hedge or
mitigate risks to which the Company or any Designated Subsidiary is exposed in the conduct
of their business or management of their liabilities;
(k) (i) Liens on (A) Equity Interests of Nan Shan Life Insurance Company, Ltd., AIG
Star Life Insurance Co. Ltd, AIG Edison Life Insurance Company, International Lease Finance
Corporation, Maiden Lane II LLC and Maiden Lane III LLC, (B) the proceeds thereof and
distributions thereon and (C) contracts with respect to the sale or other disposition of any
of the foregoing, in each case, in favor of AIA Aurora LLC and ALICO Holdings LLC (the
SPVs) securing intercompany loans by the SPVs to the Company and (ii) any other
Liens incurred pursuant to the Recapitalization Documents and the transactions contemplated
thereby;
(l) Liens arising out of deposits of cash or securities into collateral trusts or
reinsurance trusts with ceding companies, insurance regulators or as otherwise incurred in
the ordinary course of business of the Company and any Designated Subsidiary;
(m) Liens on assets acquired, constructed or improved by the Company or any Designated
Subsidiary; provided that (i) such Liens and the Indebtedness secured thereby are
incurred prior to or within 360 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such assets and (iii) such Liens shall not apply to
any other property or assets of such Person;
(n) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements constructed) by the Company or
any Designated Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such acquisition (or
construction), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost
or the fair market value of such real property, improvements or equipment at the time of
such acquisition (or construction) or (iv) such security interests do not apply to any other
property or assets of the Company or any Subsidiary;
(o) Liens arising in connection with secured Priority Indebtedness of the Company or
any Designated Subsidiary to the extent permitted under Section 6.01 (including the Liens
permitted by Section 6.01(e) and the posting of collateral in connection with the letters of
credit permitted by Section 6.01(n)); and
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(p) Liens not otherwise permitted by this Section arising in the ordinary course of
the business of the Company or any Designated Subsidiary that do not secure any
Indebtedness.
SECTION 6.03. Fundamental Changes. Except for the Potential Divestitures and the
liquidation or dissolution of any SPV that is a Designated Subsidiary, the Company will not, nor
will it cause or permit any of its Designated Subsidiaries to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, except that, if at the time thereof and immediately after giving effect thereto no
Default has occurred and is continuing:
(i) any Designated Subsidiary may merge with or into the Company; provided
that the Company shall be the surviving entity;
(ii) any Subsidiary Borrower may merge with or into any other Subsidiary;
provided that such Subsidiary Borrower shall be the surviving entity; and
(iii) any other Designated Subsidiary may merge with or into any other Subsidiary;
provided that the surviving entity shall be deemed to be a Designated Subsidiary.
SECTION 6.04. Lines of Business. The Company will not, nor will it cause or permit any of
its Designated Subsidiaries to, engage to any material extent in any business other than the
businesses of the type conducted by the Company and its Designated Subsidiaries on the date hereof
and business activities reasonably related or incidental thereto (including any new insurance and
reinsurance businesses by any Insurance Subsidiary in the ordinary course of its business).
SECTION 6.05. Dispositions. The Company will not, nor will it cause or permit any of
its Designated Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or property, whether now owned or
hereafter acquired (including receivables and leasehold interests), except:
(a) Dispositions by the Company or any Designated Subsidiary in the ordinary course of
its business (including dividends and such Dispositions involving current assets or other
invested assets and sales of property or land in connection with the affordable housing
business referred in Section 6.01(n));
(b) Dispositions of equipment or other property which is obsolete or no longer used or
useful in the conduct of the business of the Company or such Designated Subsidiary;
(c) Dispositions from the Company to a Designated Subsidiary or any other Subsidiary,
and Dispositions from a Designated Subsidiary to the Company, another Designated Subsidiary
or any other Subsidiary;
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(d) discounts or forgiveness of accounts receivable in the ordinary course of business
or in connection with collection or compromise thereof and for which adequate reserves have
been established;
(e) (i) Potential Divestitures and (ii) Dispositions pursuant to the Recapitalization
Documents and the transactions contemplated thereby (including foreclosures in connection
with Liens permitted under Section 6.02(k));
(f) Dispositions of tax credits (or properties or ownership interests in properties,
or disposition of loans or interests in loans to properties, acquired to generate tax
credits);
(g) Dispositions by the Company or any Designated Subsidiary in connection with
securitizations permitted under Section 6.01(e); and
(h) other Dispositions; provided that (i) the aggregate value of assets sold,
leased, transferred or otherwise disposed after the Effective Date pursuant to this clause
(h) shall not exceed 15% of the consolidated total assets of the Company and its
Subsidiaries (based on the consolidated balance sheet of the Company for the fiscal quarter
ended September 30, 2010 and calculated after giving pro forma effect to the Potential
Divestitures (as if the same had been consummated as of such date)) and (ii) at the time of
any such Disposition, no Default shall exist or would result therefrom.
SECTION 6.06. Transactions with Affiliates. The Company will not, nor will it cause
or permit any of its Designated Subsidiaries to, sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except that: (a) the Company or any Designated Subsidiary may engage
in any such transactions on terms and conditions not less favorable to the Company or such
Designated Subsidiary than could be obtained on an arms-length basis from unrelated third parties;
and (b) the Company or any Designated Subsidiary may engage in any such transactions with any
Subsidiary (but not involving any Affiliate that is not a Subsidiary).
SECTION 6.07. Certain Restrictive Agreements. The Company will not, nor will it cause
or permit any of its Designated Subsidiaries to, directly or indirectly, enter into any agreement
or other arrangement (other than this Agreement and any other Loan Document) that (a) prohibits,
restricts or imposes any condition upon the ability of the Company or any such Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets (including Equity
Interests of such Persons direct Subsidiaries) or (b) requires the grant of a Lien to secure an
obligation of the Company or any such Designated Subsidiary if a Lien is granted to secure another
obligation of the Company or any such Designated Subsidiary; except:
(i) restrictions and conditions imposed by Law, any Loan Document or any
Recapitalization Document;
(ii) restrictions on the Company existing on the Effective Date, restrictions on a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
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Subsidiary and is subsequently redesignated as a Designated Subsidiary, restrictions on
such Designated Subsidiary as of the date of such redesignation;
(iii) customary restrictions and conditions contained in any agreements relating to
the sale of property pending such sale; provided that such restrictions and
conditions apply only to the property to be sold and such sale is permitted hereunder;
(iv) restrictions or conditions imposed by any agreement relating to (A) secured
Indebtedness or secured Swap Contracts permitted by this Agreement if such restrictions or
conditions apply only to the property securing such Indebtedness or such secured Swap
Contracts, as the case may be, or (B) any Indebtedness of the Company issued after the
Effective Date in the form of senior unsecured notes so long as such restrictions and
conditions are no more onerous on the Company and the Designated Subsidiaries than the
restrictions and conditions contained in the Companys supplemental indenture with respect
to its 3.650% Notes due 2014; and
(v) customary provisions in leases and other contracts restricting the assignment
thereof.
SECTION 6.08. Fiscal Year. The Company will not change the last day of its fiscal
year from December 31 of each year, or the last days of the first three fiscal quarters in each of
its fiscal years from March 31, June 30 and September 30 of each year, respectively.
SECTION 6.09. Financial Covenants.
(a) Consolidated Net Worth. The Company will not permit Consolidated Net Worth at
any time to be less than $59,600,000,000 (minus the net loss (if any) recognized by the
Company in connection with the sale by the Company or any Subsidiary of the Equity Interests or
assets of International Lease Finance Corporation or Nan Shan Life Insurance Company, Limited, in
each case, in the amount disclosed by the Company in its consolidated financial statements for the
fiscal period in which such sale is consummated delivered pursuant to Section 5.01 (or otherwise
disclosed by the Company in a filing with the SEC delivered pursuant to Section 5.01) and certified
by a Financial Officer in the certificate delivered pursuant to Section 5.01(c) for such fiscal
period).
(b) Consolidated Total Debt to Consolidated Total Capitalization. The Company will
not permit Consolidated Total Debt at any time to exceed 35% of Consolidated Total Capitalization.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events (Events of Default) shall occur:
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(a) the Company or any Subsidiary Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration or otherwise;
(b) the Company or any Subsidiary Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in clause (a) of this
Article) due under any Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Company
or any other Loan Party in or in connection with any Loan Document or any amendment or
modification thereof, or any representation, warranty, statement or information contained in
any report, certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document or any amendment or modification hereof or thereof,
shall prove to have been incorrect in any material respect when made, deemed made or
furnished;
(d) (i) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in Sections 5.02(a), 5.02(d), 5.03(a) and 5.10 and in Article VI; (ii)
any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in Sections 5.01(e), 5.02(b) and 5.02(c) and such failure shall continue
unremedied for a period of three or more Business Days; or (iii) any Loan Party shall fail
to observe or perform any covenant, condition or agreement contained in Section 5.07 and
such failure shall continue unremedied for a period of five or more Business Days after
notice thereof from the Administrative Agent to the Company (given at the request of any
Lender);
(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article) and such failure shall continue unremedied for a period of 30 or more
days after notice thereof from the Administrative Agent to the Company (given at the request
of any Lender);
(f) (i) the Company or any of its Subsidiaries shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (beyond any applicable grace period
expressly set forth in the governing documents); or (ii) any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after taking into account any applicable grace period) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or their behalf to
cause such Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that
this subclause (ii) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such Indebtedness;
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(g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Company or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or for a
substantial part of the assets of the Company or any Material Subsidiary, and, in any such
case, such proceeding or petition shall continue undismissed for a period of 60 or more days
or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (g) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of the assets of the Company or any Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against the Company and/or its Subsidiaries
or any combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the Company or
any Subsidiary to enforce any such judgment, and such judgment and/or judgments either is or
are, as applicable, for (i) the payment of money in an aggregate amount in excess of
$500,000,000 (or its equivalent in any other currency) or (ii) injunctive relief and could
reasonably be expected to result in a Material Adverse Change;
(j) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Change;
(k) any of the Loan Documents shall cease for any reason to be in full force and effect
(other than in accordance with its terms), or any Loan Party shall deny in writing that it
has any further liability thereunder; or (without limiting the foregoing) at any time a
Subsidiary Borrower shall be party to this Agreement, the guarantee of the Company under
Article X shall cease to be in full force and effect (other than in accordance with its
terms), or the Company shall deny in writing that it has any liability under such guarantee;
(l) there shall have occurred a Change in Control; or
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(m) an Event of Default shall occur or be continuing under the Other Credit
Agreement;
then, and in every such event (other than an event with respect to Company described in clause (g)
or (h) 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
Company, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Company and the Subsidiary Borrowers
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 Loan Parties, anything contained
herein to the contrary notwithstanding; and in case of any event with respect to the Company
described in clause (g) or (h) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Company and the Subsidiary Borrowers 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 Loan Parties, anything contained herein to the contrary
notwithstanding.
ARTICLE VIII
ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrowers 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 and in the other Loan Documents. 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 or by the other Loan Documents that
the Administrative Agent is required to exercise in writing by the Required Lenders and (c) except
as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to
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disclose, any information relating to any Borrower or any of its Subsidiaries that is
communicated to or obtained by the Person 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 in the absence of its own gross
negligence or wilful 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
Borrowers 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 or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or therein, 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
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 any
Borrower), 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 facilities 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
Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders 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, in each case with a combined
capital and surplus of at least $500,000,000. 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 (or
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retired) Administrative Agent and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the Administrative Agents resignation hereunder, the provisions of this Article and Section
9.03 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 other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.04 and 9.03) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.04 and 9.03. Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
Notwithstanding anything to the contrary contained herein, the Joint Lead Arrangers, the
Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall
not have any duties or liabilities under this Agreement, except in their capacity, if any, as
Lenders.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) of this Section), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, to
the applicable address or telecopier number for the applicable Person in Schedule 9.01.
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
(c) Change of Address, Etc. 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.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default
at the time.
(b) 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
Loan Parties and the Required Lenders or by the Loan Parties and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall:
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(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 directly and
adversely affected thereby (provided that only the consent of the Required Lenders
shall be necessary to amend the definition of Default Rate or to waive any obligation of
the applicable Borrower to pay interest at the Default Rate);
(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 directly and adversely affected thereby;
(iv) change Section 2.15(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender;
(v) change any of the provisions of this Section or the definition of the term
Required Lenders or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; or
(vi) release the Company from its guarantee obligations under Article X, without the
written consent of each Lender;
and provided further that no such agreement shall (A) amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder or amend, modify or waive any
provision of Section 2.18 without the prior written consent of the Administrative Agent or (B)
amend, modify or otherwise affect the rights or duties of any other Agent hereunder without the
prior written consent of such other Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company agrees to pay or reimburse (i) all reasonable
out-of-pocket expenses incurred by the Agents, the Joint Lead Arrangers and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated); and (ii) all out-of-pocket
expenses incurred by any Agent or any Lender, including the fees, charges and disbursements of any
counsel for any Agent or any Lender, in connection with the enforcement or protection of its rights
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Loans made hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof, including in each case the fees, charges and
disbursements of counsel, accountants, financial
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advisors and other experts engaged by the Agents or the Required Lenders (including the
allocated fees of in-house counsel). This Section shall not apply with respect to Taxes other than
any Taxes that represent losses or damages arising from any non-Tax claim.
(b) Indemnification by Company. The Company agrees to indemnify each Agent, each
Joint Lead Arranger 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 any agreement or instrument contemplated hereby, the performance by the parties hereto
of their respective obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use or intended use of the proceeds
therefrom or (iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is
initiated by a third party, the Company or any of its Subsidiaries); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee. This Section shall not apply with respect to Taxes other than any Taxes that
represent losses or damages arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Company fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent such Lenders Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against such Agent in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable Law,
the Loan Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or the use or the intended
use of the proceeds thereof.
(e) Use of Information. No Person indemnified under paragraph (b) of this Section
shall be liable for any damages arising from the use by others of any information or other
materials obtained through Intralinks or other similar information transmission systems in
connection with this Agreement other than for direct or actual damages resulting from the gross
negligence or wilful misconduct of such indemnified Person as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(f) Payments. All amounts due under this Section shall be payable promptly after
written demand therefor.
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SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. 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 (i) no Loan Party may 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 any Loan Party without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. 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 and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents,
the Lenders and the Joint Lead Arrangers) any legal or equitable right, remedy or claim under or by
reason of this Agreement or the other Loan Documents.
(b) Assignments by Lenders. (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Company; provided that no consent of the Company shall be required for
an assignment to (I) a Lender, an Affiliate of a Lender or an Approved Fund or (II) if an
Event of Default has occurred and is continuing, any other assignee; and provided,
further, that the Company shall be deemed to have consented to any such assignment
requiring its consent under this clause (A) unless it shall object thereto by written notice
to the Administrative Agent within 15 Business Days after having received written notice
thereof; and
(B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment to a Lender.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment, the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
unless each of the Company (except if an Event of Default has occurred and is continuing)
and the Administrative Agent otherwise consent (which consent shall not be unreasonably
withheld);
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500;
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(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Company and its Related Parties or their respective securities) will
be made available and who may receive such information in accordance with the assignees
compliance procedures and applicable Laws, including Federal and state securities Laws; and
(E) no such assignment shall be made to (I) the Company or any of the Companys
Affiliates or Subsidiaries, (II) any Defaulting Lender or any of its Subsidiaries, or any
Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this subclause (II) or (III) a natural person or a corporation, limited
liability company, trust or other entity owned, operated or established for the primary
benefit of a natural person and/or family members or relatives of such person.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lenders 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, 2.14 and 9.03). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register by Administrative Agent. The Administrative Agent,
acting for this purpose as a non-fiduciary agent of the Loan Parties, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the Register). The
entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by any Loan
Party and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(v) Effectiveness of Assignments. Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignees completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information
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contained therein in the Register; provided that if either the assigning Lender or the
assignee shall have failed to make any payment required to be made by it pursuant to Section
2.04(b), 2.15(e) or 9.03(c), the Administrative Agent shall have no obligation to accept such
Assignment and Assumption and record the information therein in the Register unless and until such
payment shall have been made in full, together with all accrued interest thereon. No assignment
shall be effective for purposes of this Agreement unless it has been recorded in the Register as
provided in this paragraph.
(c) Participations. Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities (a
Participant) in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged;
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations; and (C) the Company, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lenders rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. The Company agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section; provided that such Participant (A) shall be subject to the requirements and
limitations therein, including the requirements under Section 2.14(f) (it being understood that the
documentation required under Section 2.14(f) shall be delivered to the participating Lender); (B)
agrees to be subject to the provisions of Sections 2.15 and 2.16 as if it were an assignee under
paragraph (b) of this Section; and (C) shall not be entitled to receive any greater payment under
Section 2.12 or 2.14, with respect to any participation, than its participating Lender would have
been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable
participation. To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 9.09 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.15(d) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a
register on which it enters the name and address of each Participant and the principal amounts (and
stated interest) of each Participants interest in the Loans or other obligations under this
Agreement (the Participant Register); provided that no Lender shall have any
obligation to disclose all or any portion of the Participant Register to any Person (including the
identity of any Participant or any information relating to a Participants interest in any
Commitment, Loan, promissory note or other obligations under any Loan Document) except if
additional payments under Sections 2.12 and 2.14 are requested with respect to such Participant and
except to the extent that such disclosure is necessary to establish that such Commitment, Loan,
promissory note or other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each person whose
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name is recorded in the Participant Register as the owner of such participation for all
purposes of this Agreement notwithstanding any notice to the contrary.
(d) Certain Pledges. 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 9.05. Survival. All representations and warranties made by the Loan Parties
herein and in the certificates or other instruments delivered in connection with or pursuant to
this Agreement or any other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making by the
Lenders of any Loans, regardless of any investigation made by or on behalf of any Lender and
notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and so long as the Commitments have not expired or been terminated. The
provisions of Sections 2.12, 2.13, 2.14 and 9.03 and Article VIII shall survive and remain in full
force and effect regardless of the consummation of the transactions contemplated hereby, any
assignment of rights by, or replacement of, a Lender, the expiration or termination of the
Commitments, the repayment, satisfaction or discharge of all Obligations under the Loan Documents,
the invalidity or unenforceability of any term or provision of any Loan Document or any
investigation made by or on behalf of any Lender.
SECTION 9.06. 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, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract between and 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. This Agreement (except as
provided in Section 4.01) shall become effective as of the Effective Date 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 to this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or
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unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 9.08. Payments Set Aside. To the extent that any payment by or on behalf of
any Loan Party is made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any
part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds
Effective Rate from time to time in effect. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.
SECTION 9.09. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and its Affiliates are authorized at any time and from time to time, to the
fullest extent permitted by Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing by
such Lender and its Affiliates to or for the credit or the account of any Loan Party against any of
and all the obligations of such Loan Party hereunder and under the other Loan Documents,
irrespective of whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which such Lender may
have. Each Lender agrees to notify the Company and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive 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 the other Loan Documents, 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
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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 the Administrative Agent or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement against any Loan Party or its properties in the courts of any
jurisdiction.
(c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Loan Documents in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
Law.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.12. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.13. 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 Related Parties (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 or quasi-regulatory authority (such as the NAIC), (c) to the extent
required by any 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
under any other Loan Document or any suit, action or proceeding relating
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to this Agreement or any other Loan Document or the enforcement of rights hereunder or
thereunder, (f) subject to an agreement in writing containing provisions substantially the same as
those of this paragraph and for the benefit of the Loan Parties, 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 Company or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this paragraph or (ii) becomes available
to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the
Company. In the event that the Administrative Agent or any Lender becomes legally compelled to
disclose any confidential Information pursuant to clause (c) of this Section, the Administrative
Agent or such Lender shall, to the extent permitted by Law, give prompt written notice of that fact
to the Company prior to the disclosure, and in the event that the Company shall advise the
Administrative Agent or such Lender that it will seek an appropriate remedy to prevent or limit
such disclosure, the Administrative Agent or such Lender, as applicable, shall cooperate reasonably
(at the expense of the Company) with the Company in seeking such remedy. For the purposes of this
Section, Information means all information received from the Company relating to the
Company, its Subsidiaries or their 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
Company; provided that, in the case of information received from the Company after the
Effective Date, such information is clearly identified at or prior to 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.
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS SECTION) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
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SECTION 9.14. USA PATRIOT Act. Each Lender hereby notifies the Loan Parties that
pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)), such Lender may be required to obtain, verify and record information that
identifies each Loan Party, 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 said
Act.
SECTION 9.15. No Advisory or Fiduciary Relationships. In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), each Loan Party acknowledges and agrees
that: (a) (i) the arranging and other services regarding this Agreement provided by the
Administrative Agent, the Lenders and the Joint Lead Arrangers are arms-length commercial
transactions between the Company and its Affiliates, on the one hand, and the Administrative Agent,
the Lenders and the Joint Lead Arrangers, on the other hand, (ii) each Loan Party has consulted its
own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and
(iii) each Loan Party is capable of evaluating, and understands and accepts, the terms, risks and
conditions of the transactions contemplated hereby and by the other Loan Documents; (b) (i) the
Administrative Agent, the Lenders and the Joint Lead Arrangers each is and has been acting solely
as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is
not, and will not be acting as an advisor, agent or fiduciary for the Company or any of its
Affiliates, or any other Person and (ii) none of the Administrative Agent, the Lenders and the
Joint Lead Arrangers has any obligation to the Company or any of its Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; and (c) the Administrative Agent, the Lenders and the Joint Lead Arrangers
and their respective Affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and its Affiliates, and none of the Administrative
Agent, the Lenders and Joint Lead Arrangers has any obligation to disclose any of such interests to
the Company or its Affiliates. To the fullest extent permitted by Law, each Loan Party hereby
waives and releases any claims that it may have against the Administrative Agent, the Lenders and
the Joint Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty
in connection with any aspect of any transaction contemplated hereby.
ARTICLE X
GUARANTEE
SECTION 10.01. Guarantee. The Company hereby guarantees to each Lender and the
Administrative Agent and their respective successors and assigns the prompt payment in full when
due (whether at stated maturity, by acceleration or otherwise) of the Obligations of each
Subsidiary Borrower strictly in accordance with the terms thereof (such obligations being herein
collectively called the Guaranteed Obligations). The Company hereby further agrees that
if any Subsidiary Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations of such Subsidiary Borrower, the
Company will promptly pay the same, without any demand or notice whatsoever, and that in the case
of any extension of time of payment or renewal of any of such Guaranteed Obligations, the
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same will be promptly paid in full when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.
SECTION 10.02. Obligations Unconditional. The obligations of the Company under
Section 10.01 are absolute, irrevocable and unconditional, irrespective of the value, genuineness,
validity, regularity or enforceability of the obligations of the Subsidiary Borrowers under this
Agreement or any other agreement or instrument referred to herein, or any substitution, release or
exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable Law, irrespective of any Law of any jurisdiction or any
other event affecting any term of any Guaranteed Obligation or any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
it being the intent of this Article that the obligations of the Company hereunder shall be absolute
and unconditional under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or
impair the liability of the Company hereunder, which shall remain absolute and unconditional as
described above:
(i) at any time or from time to time, without notice to the Company, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other
agreement or instrument referred to herein shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any
right under this Agreement or any other agreement or instrument referred to herein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt with.
The Company hereby expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Subsidiary Borrower under this Agreement or any other
agreement or instrument referred to herein, or against any other Person under any other guarantee
of, or security for, any of the Guaranteed Obligations.
SECTION 10.03. Reinstatement. The obligations of the Company under this Article shall
be automatically reinstated if and to the extent that for any reason any payment by or on behalf of
any Subsidiary Borrower in respect of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings
in bankruptcy or reorganization or otherwise, and each Guarantor agrees that it will indemnify the
Administrative Agent and each Lender on demand for all reasonable costs and expenses (including
fees of counsel) incurred by the Administrative Agent or such Lender in connection with such
rescission or restoration, including any such costs and expenses incurred in defending against any
claim alleging that such payment constituted a
Three-Year Credit Agreement
- 77 -
preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar
Law.
SECTION 10.04. Subrogation. The Company hereby agrees that, until the payment and
satisfaction in full of all Guaranteed Obligations and the expiration and termination of the
Commitments of the Lenders under this Agreement, it shall not exercise any right or remedy arising
by reason of any performance by it of its guarantee in Section 10.01, whether by subrogation or
otherwise, against any Subsidiary Borrower or any other guarantor of any of the Guaranteed
Obligations or any security for any of the Guaranteed Obligations.
SECTION 10.05. Remedies. The Company agrees that, as between the Company and the
Lenders, the obligations of any Subsidiary Borrower under this Agreement may be declared to be
forthwith due and payable as provided in Article VII (and shall be deemed to have become
automatically due and payable in the circumstances provided in Article VII) for purposes of Section
10.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or
such obligations from becoming automatically due and payable) as against such Subsidiary Borrower
and that, in the event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable by such Subsidiary
Borrower) shall forthwith become due and payable by the Company for purposes of Section 10.01.
SECTION 10.06. Continuing Guarantee. The guarantee in this Article is a continuing
guarantee, and shall apply to all Guaranteed Obligations whenever arising.
Three-Year Credit Agreement
- 78 -
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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AMERICAN INTERNATIONAL GROUP, INC. |
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By
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/s/ Robert A. Gender |
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Name: Robert A. Gender |
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Title: Vice President and Treasurer |
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U.S. Federal Tax Identification No.: 13-2592361 |
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Three-Year Credit Agreement
- 79 -
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SUBSIDIARY BORROWERS |
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[NONE AS OF THE EFFECTIVE DATE] |
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Three-Year Credit Agreement
- 80 -
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LENDERS
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
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By |
/s/ Michael E. Murray
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Name: |
Michael E. Murray |
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Title: |
Executive Director |
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- 81 -
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BANK OF AMERICA, N.A.,
as a Lender and a Syndication Agent
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By |
/s/ Jason Cassity
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Name: |
Jason Cassity |
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Title: |
Vice President |
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- 82 -
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CITIBANK, N.A.,
as a Lender and a Syndication Agent
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By |
/s/ Maureen Maroney
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Name: |
Maureen Maroney |
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Title: |
Vice President |
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- 83 -
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BARCLAYS BANK PLC
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By |
/s/ Kevin Cullen
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Name: |
Kevin Cullen |
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Title: |
Director |
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- 84 -
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
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By |
/s/ Jay Chall
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Name: |
Jay Chall |
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Title: |
Director |
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By |
/s/ Kathrin Marti
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Name: |
Kathrin Marti |
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Title: |
Assistant Vice President |
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- 85 -
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DEUTSCHE BANK AG NEW YORK BRANCH
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By |
/s/ Robert Chesley
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Name: |
Robert Chesley |
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Title: |
Director |
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By |
/s/ John S. McGill
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Name: |
John S. McGill |
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Title: |
Director |
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- 86 -
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GOLDMAN SACHS BANK USA
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By |
/s/ Mark Walton
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Name: |
Mark Walton |
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Title: |
Authorized Signatory |
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- 87 -
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MORGAN STANLEY SENIOR FUNDING, INC.
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By |
/s/ Ryan Vetsch
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Name: |
Ryan Vetsch |
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Title: |
Vice President |
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- 88 -
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NOMURA INTERNATIONAL PLC
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By |
/s/ Morven Jones
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Name: |
Morven Jones |
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Title: |
Managing Director |
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Three-Year Credit Agreement
- 89 -
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THE ROYAL BANK OF SCOTLAND PLC
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By |
/s/ Charles Greer
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Name: |
Charles Greer |
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Title: |
Managing Director |
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Three-Year Credit Agreement
- 90 -
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UBS LOAN FINANCE LLC
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By |
/s/ Irja R. Otsa
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Name: |
Irja R. Otsa |
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Title: |
Associate Director |
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By |
/s/ Mary E. Evans
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Name: |
Mary E. Evans |
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Title: |
Associate Director |
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- 91 -
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WELLS FARGO BANK, N.A.
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By |
/s/ Robert Meyer
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Name: |
Robert Meyer |
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Title: |
Managing Director |
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- 92 -
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INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH
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By |
/s/ Bin Wu
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Name: |
Bin Wu |
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Title: |
General Manager |
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- 93 -
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BNP PARIBAS
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By |
/s/ Joseph M. Malley
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Name: |
Joseph M. Malley |
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Title: |
Managing Director |
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By |
/s/ Riad Jafarov
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Name: |
Riad Jafarov |
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Title: |
Vice President |
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- 94 -
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ROYAL BANK OF CANADA
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By |
/s/ Tim Stephens
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Name: |
Tim Stephens |
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Title: |
Authorized Signatory |
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- 95 -
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STANDARD CHARTERED BANK
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By |
/s/ Robert Gilbert
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Name: |
Robert Gilbert |
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Title: |
Managing Director |
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By |
/s/ Robert K. Reddington
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Name: |
Robert K. Reddington |
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Title: |
Credit Documentation Manager |
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Three-Year Credit Agreement
- 96 -
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SUMITOMO MITSUI BANKING CORPORATION
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By |
/s/ William M. Ginn
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Name: |
William M. Ginn |
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Title: |
Executive Officer |
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Three-Year Credit Agreement
- 97 -
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THE BANK OF NEW YORK MELLON
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By |
/s/ Michael Pensari
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Name: |
Michael Pensari |
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Title: |
Vice President |
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Three-Year Credit Agreement
- 98 -
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THE BANK OF NOVA SCOTIA
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By |
/s/ David Mahmood
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Name: |
David Mahmood |
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Title: |
Managing Director |
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Three-Year Credit Agreement
- 99 -
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U.S. BANK N.A.
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By |
/s/
Inna Kotsubey |
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Name: |
Inna Kotsubey |
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Title: |
Vice President |
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Three-Year Credit Agreement
- 100 -
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DBS BANK LTD., LOS ANGELES AGENCY
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By |
/s/ James McWalters
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Name: |
James McWalters |
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Title: |
General Manager |
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Three-Year Credit Agreement
- 101 -
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AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
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By |
/s/ Robert Grillo
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Name: |
Robert Grillo |
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Title: |
Director |
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Three-Year Credit Agreement
- 102 -
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CREDIT AGRICOLE CORPORATE & INVESTMENT BANK
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By |
/s/ Charles Kornberger
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Name: |
Charles Kornberger |
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Title: |
Managing Director |
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By |
/s/ Frank Tatulli
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Name: |
Frank Tatulli |
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Title: |
Managing Director |
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Three-Year Credit Agreement
- 103 -
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ING BANK N.V.
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By |
/s/ C. van den Berge
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Name: |
C. van den Berge |
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Title: |
Director |
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By |
/s/ R. Liebesny
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Name: |
R. Liebesny |
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Title: |
Manager |
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Three-Year Credit Agreement
- 104 -
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MIZUHO CORPORATE BANK, LTD.
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By |
/s/ Toru Inoue
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Name: |
Toru Inoue |
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Title: |
Deputy General Manager |
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Three-Year Credit Agreement
- 105 -
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NATIONAL AUSTRALIA BANK LIMITED
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By |
/s/ Helen Hsu
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Name: |
Helen Hsu |
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Title: |
Director |
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Three-Year Credit Agreement
- 106 -
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PNC BANK, NATIONAL ASSOCIATION
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By |
/s/ Gustavus A. Bahr
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Name: |
Gustavus A. Bahr |
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Title: |
Senior Vice President |
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Three-Year Credit Agreement
- 107 -
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SOCIETE GENERALE
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By |
/s/ William Aishton
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Name: |
William Aishton |
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Title: |
Director |
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Three-Year Credit Agreement
- 108 -
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STATE STREET BANK AND TRUST COMPANY
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By |
/s/ Deirdre M. Holland
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Name: |
Deirdre M. Holland |
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Title: |
Vice President |
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Three-Year Credit Agreement
- 109 -
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UNICREDIT BANK AG, NEW YORK BRANCH
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By |
/s/ Jorge Wilmer
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Name: |
Jorge Wilmer |
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Title: |
Managing Director |
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By |
/s/ Michael A. Imperiale
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Name: |
Michael A. Imperiale |
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Title: |
Director |
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Three-Year Credit Agreement
- 110 -
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MIHI LLC
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By |
/s/ Andy Stock
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Name: |
Andy Stock |
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Title: |
Managing Director |
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By |
/s/ Andrew Underwood
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Name: |
Andrew Underwood |
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Title: |
Managing Director |
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Three-Year Credit Agreement
- 111 -
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NATIXIS, NEW YORK BRANCH
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By |
/s/ Ray Meyer
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Name: |
Ray Meyer |
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Title: |
Managing Director |
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By |
/s/ Paul Goncharoff
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Name: |
Paul Goncharoff |
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Title: |
Associate |
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Three-Year Credit Agreement
- 112 -
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THE GOVERNOR & COMPANY OF THE BANK OF IRELAND
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By |
/s/ Padraig Rushe
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Name: |
Padraig Rushe |
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Title: |
Authorised Signatory |
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By |
/s/ Orla Jones
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Name: |
Orla Jones |
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Title: |
Authorised Signatory |
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Three-Year Credit Agreement
SCHEDULE 2.01
Commitments
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Name of Lender |
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Commitment ($) |
JPMORGAN CHASE BANK, N.A. |
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$ |
66,000,000.00 |
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BANK OF AMERICA, N.A. |
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$ |
66,000,000.00 |
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CITIBANK, N.A. |
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$ |
66,000,000.00 |
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BARCLAYS BANK PLC |
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$ |
66,000,000.00 |
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CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
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$ |
66,000,000.00 |
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DEUTSCHE BANK AG NEW YORK BRANCH |
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$ |
66,000,000.00 |
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GOLDMAN SACHS BANK USA |
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$ |
66,000,000.00 |
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MORGAN STANLEY SENIOR FUNDING, INC. |
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$ |
66,000,000.00 |
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NOMURA INTERNATIONAL PLC |
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$ |
66,000,000.00 |
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THE ROYAL BANK OF SCOTLAND PLC |
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$ |
66,000,000.00 |
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UBS LOAN FINANCE LLC |
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$ |
66,000,000.00 |
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WELLS FARGO BANK, N.A. |
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$ |
66,000,000.00 |
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INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH |
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$ |
48,000,000.00 |
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BNP PARIBAS |
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$ |
40,000,000.00 |
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ROYAL BANK OF CANADA |
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$ |
40,000,000.00 |
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STANDARD CHARTERED BANK |
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$ |
40,000,000.00 |
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SUMITOMO MITSUI BANKING CORPORATION |
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$ |
40,000,000.00 |
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THE BANK OF NEW YORK MELLON |
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$ |
40,000,000.00 |
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THE BANK OF NOVA SCOTIA |
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$ |
40,000,000.00 |
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U.S. BANK N.A. |
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$ |
40,000,000.00 |
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DBS BANK LTD., LOS ANGELES AGENCY |
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$ |
35,000,000.00 |
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Schedule 2.01 to Three-Year Credit Agreement
- 2 -
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Name of Lender |
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Commitment ($) |
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
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$ |
30,000,000.00 |
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CREDIT AGRICOLE CORPORATE & INVESTMENT BANK |
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$ |
30,000,000.00 |
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ING BANK N.V. |
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$ |
30,000,000.00 |
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MIZUHO CORPORATE BANK, LTD. |
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$ |
30,000,000.00 |
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NATIONAL AUSTRALIA BANK LIMITED |
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$ |
30,000,000.00 |
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PNC BANK, NATIONAL ASSOCIATION |
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$ |
30,000,000.00 |
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SOCIETE GENERALE |
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$ |
30,000,000.00 |
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STATE STREET BANK AND TRUST COMPANY |
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$ |
30,000,000.00 |
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UNICREDIT BANK AG, NEW YORK BRANCH |
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$ |
30,000,000.00 |
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MIHI LLC |
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$ |
25,000,000.00 |
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NATIXIS, NEW YORK BRANCH |
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$ |
25,000,000.00 |
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THE GOVERNOR & COMPANY OF THE BANK OF IRELAND |
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$ |
25,000,000.00 |
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TOTAL |
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$ |
1,500,000,000.00 |
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Schedule 2.01 to Three-Year Credit Agreement
SCHEDULE 2.01A
Existing Operating Indebtedness
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Type (all AIG borrowings supported by assets) |
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Amount as of September 30, 2010 (in millions) |
MIP matched notes and bonds payable |
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$ |
12,052 |
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Series AIGFP matched notes and bonds payable |
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$ |
4,037 |
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Notes and bonds payable, at fair value |
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$ |
3,386 |
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Loans and mortgages payable, at fair value |
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$ |
697 |
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TOTAL |
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$ |
20,172 |
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Schedule 2.01A to Three-Year Credit Agreement
SCHEDULE 4.02(f)
Index Debt Ratings
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S&P |
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Moodys |
Index Debt Rating |
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Status |
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Index Debt Rating |
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Status |
A-
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Negative
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A3
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Negative |
Schedule 4.02(f) to Three-Year Credit Agreement
SCHEDULE 9.01
Notice Information
I. Company:
American International Group, Inc.
180 Maiden Lane
New York, New York 10038
Attention: Robert A. Gender, Vice President and Treasurer
Fax No.: 212-770-7991
Telephone No.: 212-770-8212
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Erik Lindauer
Fax No.: 212-558-3588
Telephone No.: 212-558-3548
II. Administrative Agent:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Harshal H Patel
Fax No.: 713-750-2223
Telephone No.: 713-750-2268
with a copy to:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Christina M Masroor
Fax No.: 713-750-2223
Telephone No.: 713-750-7940
III. Lenders
Initially, as provided in the relevant Lenders Administrative Questionnaire
Schedule 9.01 to Three-Year Credit Agreement
EXHIBIT A
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor identified in item 1
below (the Assignor) and the Assignee identified in item 2 below (the
Assignee). Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (as amended, the Credit Agreement),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors rights
and obligations in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including without limitation any letters of credit,
guarantees and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the
Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively as the Assigned Interest). Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
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1.
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Assignor:
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______________________ |
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2.
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Assignee:
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____________________ |
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[and is an [Affiliate][Approved Fund] of [identify Lender]]1 |
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3.
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Borrower(s):
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American International Group, Inc. and (if applicable) certain subsidiaries thereof |
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4. |
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Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
Assignment and Assumption
- 2 -
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5.
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Credit Agreement:
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The $1,500,000,000 Three-Year Credit Agreement dated as of December 23, 2010 among American
International Group, Inc., the Subsidiary Borrowers party thereto, the Lenders party thereto and
JPMorgan Chase Bank, N.A., as Administrative Agent. |
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6.
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Assigned Interest: |
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Aggregate Amount |
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of Commitment/ |
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Loans for all |
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Assignor |
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Loans Assigned |
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$
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$
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$
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Effective Date: _________, 201_ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By: |
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Title: |
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ASSIGNEE
[NAME OF ASSIGNEE]
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By: |
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Title: |
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Assignment and Assumption
- 3 -
[Consented to and]2 Accepted:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
[Consented to:]3
AMERICAN INTERNATIONAL GROUP, INC.
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2 |
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To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement. |
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3 |
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To be added only if the consent of the
Company is required by the terms of the Credit Agreement. |
Assignment and Assumption
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements, if any, under the Credit Agreement including
Section 9.04(b) thereof (subject to such consents, if any, as may be required under such Section
9.04(b)), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) 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 Assignment and
Assumption and to purchase the Assigned Interest and (vii) if it is a Non-U.S. Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall
Assignment and Assumption
- 2 -
make all payments in respect of the Assigned Interest (including payments of principal,
interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding
the Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Assignment and Assumption
EXHIBIT B-1
[FORM OF SUBSIDIARY BORROWER DESIGNATION]
SUBSIDIARY BORROWER DESIGNATION
_______, 201_
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
[Address]
Attention:
Re: Subsidiary Borrower Designation
Ladies and Gentlemen:
Reference is made to the Three-Year Credit Agreement (the Credit Agreement) dated as
of December 23, 2010 among American International Group Inc. (the Company), the
Subsidiary Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as
Administrative Agent (the Administrative Agent). Capitalized terms used but not defined
herein shall have the respective meanings assigned to such terms in the Credit Agreement.
The Company hereby designates [_____] (the Designated Subsidiary), a wholly-owned
Domestic Subsidiary of the Company and a [corporation/limited liability company] duly organized
under the laws of State of [____], as a Subsidiary Borrower in accordance with Section 2.19(a) of
the Credit Agreement until such designation is terminated in accordance with Section 2.19(c)
thereof.
The Designated Subsidiary hereby accepts the above designation and hereby expressly and
unconditionally accepts the obligations of a Subsidiary Borrower under the Credit Agreement,
adheres to the Credit Agreement and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this Subsidiary Borrower Designation, it shall be a Subsidiary
Borrower for purposes of the Credit Agreement and agrees to be bound by and perform and comply with
the terms and provisions of the Credit Agreement applicable to it as if it had originally executed
the Credit Agreement as a Subsidiary Borrower.
The Company hereby confirms and agrees that, after giving effect to this Subsidiary Borrower
Designation, the Guarantee of the Company contained in Article X of the Credit Agreement shall
apply to all of the obligations of the Designated Subsidiary under the Credit Agreement.
The Designated Subsidiary hereby represents and warrants:
1. Each of the representations and warranties set forth in Section 3.15 of the Credit
Agreement is true and correct in all material respects (or, in the case of any such
representations and warranties qualified as to materiality, in all respects), in each case
as it relates to the Designated Subsidiary and its subsidiaries;
Subsidiary Borrower Designation
- 2 -
2. The Designated Subsidiarys addresses for notices, other communications and service
of process provided for in the Credit Agreement shall be given in the manner, and with the
effect, specified in Section 9.01 of the Credit Agreement to it at its Address for Notices
specified on the signature pages below; and
3. The Designated Subsidiary shall deliver to the Administrative Agent the documents
and certificates set forth in, or required by, Section 2.19(b) of the Credit Agreement.
The designation of the Designated Subsidiary as a Subsidiary Borrower under the Credit
Agreement shall become effective as of the date (the Designation Effective Date) on which
the Administrative Agent accepts this Subsidiary Borrower Designation as provided on the signature
pages below. As of the Designation Effective Date, the Designated Subsidiary shall be entitled to
the rights, and subject to the obligations, of a Subsidiary Borrower. Except as expressly herein
provided, the Credit Agreement shall remain unchanged and in full force and effect.
The Designated Subsidiary hereby agrees that this Subsidiary Borrower Designation, the Credit
Agreement and the promissory notes (if any) executed and delivered by the Designated Subsidiary
pursuant to the Credit Agreement shall be governed by, and construed in accordance with, the law of
the State of New York. The Designated Subsidiary hereby submits to the exclusive jurisdiction of
any New York State court or Federal court of the United States of America, in each case sitting in
New York County, and any appellate court from any thereof, for the purposes of all legal
proceedings arising out of or relating to this Subsidiary Borrower Designation, the Credit
Agreement or the transactions contemplated thereby. THE DESIGNATED SUBSIDIARY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUBSIDIARY BORROWER DESIGNATION, THE CREDIT AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
This Subsidiary Borrower Designation may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement.
Subsidiary Borrower Designation
- 3 -
IN WITNESS WHEREOF, the Company and the Designated Subsidiary have caused this Subsidiary
Borrower Designation to be duly executed and delivered as of the day and year first above written.
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AMERICAN INTERNATIONAL GROUP, INC.
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By |
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Name: |
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Title: |
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DESIGNATED SUBSIDIARY
[NAME OF SUBSIDIARY],
a _____ [corporation/limited liability company]
Address
for Notices
_________________
_________________
_________________
Attention:______________
Fax No:________________
Telephone No.:__________
With
a copy to:
American International Group, Inc.
[_____________]
[_____________]
Attention: [_____________]
Fax No.: [_____________]
Telephone No.: [_____________]
Subsidiary Borrower Designation
- 4 -
ACCEPTED:
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
Subsidiary Borrower Designation
EXHIBIT B-2
[FORM OF SUBSIDIARY BORROWER TERMINATION NOTICE]
SUBSIDIARY BORROWER TERMINATION NOTICE
________, 201_
To: JPMorgan Chase Bank, N.A.,
as Administrative Agent
[Address]
Attention: [______]
Re: Subsidiary Borrower Termination Notice
Ladies and Gentlemen:
Reference is made to the Three-Year Credit Agreement (the Credit Agreement) dated as
of December 23, 2010 among American International Group, Inc. (the Company), the
Subsidiary Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A. as the
Administrative Agent. Terms used herein having the meanings assigned to them in the Credit
Agreement.
The Company hereby gives notice pursuant to Section 2.19(c) of the Credit Agreement that,
effective as of the date hereof, [_______] (the Subsidiary Borrower) is terminated as a
Subsidiary Borrower under the Credit Agreement and all commitments by the Lenders to make Loans to
the Subsidiary Borrower under the Credit Agreement are hereby terminated.
Pursuant to Section 2.19(c) of the Credit Agreement, the Company hereby certifies that there
are no outstanding Loans made to the Subsidiary Borrower, any unpaid interest thereon or any other
amounts owing by the Subsidiary Borrower under the Credit Agreement and the other Loan Documents.
All obligations of the Subsidiary Borrower arising in respect of any period in which the
Subsidiary Borrower was, or on account of any action or inaction taken by the Subsidiary Borrower
as, a Subsidiary Borrower under the Credit Agreement (and the guarantee of the Company of such
obligations pursuant to Article X of the Credit Agreement) shall survive the termination effected
by this notice.
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AMERICAN INTERNATIONAL GROUP, INC.
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By |
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Name: |
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Subsidiary Borrower Designation
EXHIBIT C
[Form of Promissory Note]
PROMISSORY NOTE
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$[_________]
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[________], 201[_]
New York, New York |
FOR VALUE RECEIVED, [NAME OF BORROWER], a [_______] [corporation/limited liability company]
(the Borrower), hereby promises to pay to [NAME OF LENDER] (the Lender), at
such of the offices of JPMorgan Chase Bank, N.A. as shall be notified to the Borrower from time to
time, the principal sum of [DOLLAR AMOUNT] dollars (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under the Credit
Agreement), in lawful money of the United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each
Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by
the Lender on the schedule attached hereto or any continuation thereof, provided that the
failure of the Lender to make any such recordation or endorsement shall not affect the obligations
of the Borrower to make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Loans made by the Lender to the Borrower.
This Note evidences Loans made by the Lender to the Borrower under the Three-Year Credit
Agreement dated as of December 23, 2010 (as modified and supplemented and in effect from time to
time, the Credit Agreement) among the Company, the Subsidiary Borrowers party thereto,
the lenders party thereto (including the Lender) and JPMorgan Chase Bank, N.A., as Administrative
Agent. Terms used but not defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 9.04 of the Credit Agreement, this Note may not be assigned by
the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law of the State of New
York.
Promissory Note
- 2 -
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[NAME OF BORROWER]
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By |
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Promissory Note
SCHEDULE OF LOANS
This Note evidences Loans made, continued or converted under the within-described Credit
Agreement to the Borrower, on the dates, in the principal amounts, of the Types, bearing interest
at the rates and having Interest Periods (if applicable) of the durations set forth below, subject
to the continuations, conversions and payments and prepayments of principal set forth below:
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Amount Paid, |
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Principal |
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Promissory Note
EXHIBIT D
FORMS OF U.S. TAX CERTIFICATES
[See Attached Forms]
U.S. Tax Certificate
EXHIBIT D-1
[FORM OF U.S. TAX CERTIFICATE]
(FOR NON-U.S. LENDERS THAT ARE NOT PARTNERSHIPS
FOR U.S. FEDERAL INCOME TAX PURPOSES)
Reference is hereby made to the Three-Year Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a
controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the
Code and (v) the interest payments in question are not effectively connected with the undersigneds
conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Company with a certificate of
its non-U.S. person status on United States Internal Revenue Service Form W-8BEN. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
[NAME OF LENDER]
By:____________________________
Name:
Title:
Date: ________, 201_
U.S. Tax Certificate
EXHIBIT D-2
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Lenders That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Three-Year Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to the Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a ten percent shareholder of the Company within the
meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code, and
(vi) the interest payments in question are not effectively connected with the undersigneds or its
partners/members conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Company with United States
Internal Revenue Service Form W-8IMY accompanied by a United States Internal Revenue Service Form
W-8BEN from each of its partners/members claiming the portfolio interest exemption. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
[NAME OF LENDER]
By:____________________________
Name:
Title:
Date: ________, 201_
U.S. Tax Certificate
EXHIBIT D-3
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Three-Year Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Company as described in Section 881(c)(3)(C) of the Code, and (v) the interest
payments in question are not effectively connected with the undersigneds conduct of a U.S. trade
or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on United States Internal Revenue Service Form W-8BEN. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
[NAME OF PARTICIPANT]
By:____________________________
Name:
Title:
Date: _______, 201_
U.S. Tax Certificate
EXHIBIT D-4
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Three-Year Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of the Company within the meaning of
Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Company as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigneds or its
partners/members conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with United States Internal Revenue
Service Form W-8IMY accompanied by a United States Internal Revenue Service Form W-8BEN from each
of its partners/members claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
[NAME OF PARTICIPANT]
By:____________________________
Name:
Title:
Date: _______, 201_
U.S. Tax Certificate
exv10w2
EXHIBIT 10.2
364-DAY CREDIT AGREEMENT
dated as of
December 23, 2010
among
AMERICAN INTERNATIONAL GROUP, INC.,
The Subsidiary Borrowers Party Hereto,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.
and
CITIBANK, N.A.,
as Co-Syndication Agents
BARCLAYS BANK PLC,
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
DEUTSCHE BANK SECURITIES INC.,
GOLDMAN SACHS BANK USA,
MORGAN STANLEY SENIOR FUNDING, INC.,
NOMURA INTERNATIONAL PLC,
THE ROYAL BANK OF SCOTLAND PLC,
UBS SECURITIES LLC
and
WELLS FARGO BANK, N.A.
as Co-Documentation Agents
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.01. Defined Terms |
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1 |
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SECTION 1.02. Terms Generally |
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22 |
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SECTION 1.03. Accounting Terms and Determinations |
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23 |
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ARTICLE II THE CREDITS |
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23 |
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SECTION 2.01. Commitments |
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23 |
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SECTION 2.02. Loans and Borrowings |
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24 |
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SECTION 2.03. Requests for Borrowings |
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25 |
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SECTION 2.04. Funding of Borrowings |
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25 |
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SECTION 2.05. Interest Elections |
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26 |
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SECTION 2.06. Termination and Reduction of Commitments |
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27 |
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SECTION 2.07. Repayment of Loans; Evidence of Debt |
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28 |
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SECTION 2.08. Prepayment of Loans |
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29 |
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SECTION 2.09. Fees |
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29 |
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SECTION 2.10. Interest |
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30 |
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SECTION 2.11. Alternate Rate of Interest |
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31 |
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SECTION 2.12. Increased Costs |
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31 |
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SECTION 2.13. Break Funding Payments |
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32 |
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SECTION 2.14. Taxes |
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33 |
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SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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36 |
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SECTION 2.16. Mitigation Obligations; Replacement of Lenders |
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38 |
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SECTION 2.17. Increase in Commitments |
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39 |
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SECTION 2.18. Defaulting Lenders |
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40 |
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SECTION 2.19. Designation of Subsidiary Borrowers |
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40 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES |
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42 |
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SECTION 3.01. Organization; Powers |
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42 |
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SECTION 3.02. Authorization; Enforceability |
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42 |
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SECTION 3.03. Governmental Authorizations |
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42 |
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SECTION 3.04. No Contravention |
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42 |
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SECTION 3.05. Financial Statements; No Material Adverse Change |
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43 |
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SECTION 3.06. Properties |
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43 |
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SECTION 3.07. Litigation and Environmental Matters |
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43 |
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SECTION 3.08. Compliance with Laws |
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44 |
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SECTION 3.09. No Default |
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44 |
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SECTION 3.10. Investment Company Status |
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44 |
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SECTION 3.11. Taxes |
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44 |
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SECTION 3.12. ERISA |
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44 |
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SECTION 3.13. Disclosure |
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45 |
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SECTION 3.14. Margin Regulations |
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45 |
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SECTION 3.15. Certain Representations by Subsidiary Borrowers |
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45 |
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SECTION 3.16. Sanctioned Persons |
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45 |
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- i -
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Page |
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ARTICLE IV CONDITIONS |
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46 |
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SECTION 4.01. Effective Date |
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46 |
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SECTION 4.02. Closing Date |
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47 |
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SECTION 4.03. Each Credit Event |
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49 |
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ARTICLE V AFFIRMATIVE COVENANTS |
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49 |
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SECTION 5.01. Financial Statements and Other Information |
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50 |
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SECTION 5.02. Notices of Material Events |
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51 |
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SECTION 5.03. Existence; Conduct of Business |
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52 |
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SECTION 5.04. Payment of Obligations |
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52 |
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SECTION 5.05. Maintenance of Properties |
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52 |
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SECTION 5.06. Books and Records |
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52 |
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SECTION 5.07. Inspection Rights |
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52 |
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SECTION 5.08. Compliance with Laws and Contractual Obligations |
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53 |
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SECTION 5.09. Insurance |
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53 |
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SECTION 5.10. Use of Proceeds |
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53 |
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ARTICLE VI NEGATIVE COVENANTS |
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53 |
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SECTION 6.01. Priority Indebtedness |
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53 |
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SECTION 6.02. Liens |
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56 |
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SECTION 6.03. Fundamental Changes |
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58 |
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SECTION 6.04. Lines of Business |
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58 |
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SECTION 6.05. Dispositions |
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58 |
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SECTION 6.06. Transactions with Affiliates |
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59 |
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SECTION 6.07. Certain Restrictive Agreements |
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59 |
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SECTION 6.08. Fiscal Year |
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60 |
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SECTION 6.09. Financial Covenants |
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60 |
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ARTICLE VII EVENTS OF DEFAULT |
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60 |
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ARTICLE VIII ADMINISTRATIVE AGENT |
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63 |
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ARTICLE IX MISCELLANEOUS |
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66 |
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SECTION 9.01. Notices |
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66 |
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SECTION 9.02. Waivers; Amendments |
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66 |
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SECTION 9.03. Expenses; Indemnity; Damage Waiver |
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67 |
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SECTION 9.04. Successors and Assigns |
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69 |
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SECTION 9.05. Survival |
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72 |
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SECTION 9.06. Counterparts; Integration; Effectiveness |
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72 |
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SECTION 9.07. Severability |
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72 |
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SECTION 9.08. Payments Set Aside |
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73 |
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SECTION 9.09. Right of Setoff |
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73 |
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SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process |
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73 |
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SECTION 9.11. WAIVER OF JURY TRIAL |
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74 |
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SECTION 9.12. Headings |
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74 |
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SECTION 9.13. Confidentiality |
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74 |
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SECTION 9.14. USA PATRIOT Act |
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76 |
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- ii -
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Page |
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SECTION 9.15. No Advisory or Fiduciary Relationships |
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76 |
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ARTICLE X GUARANTEE |
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76 |
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SECTION 10.01. Guarantee |
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76 |
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SECTION 10.02. Obligations Unconditional |
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77 |
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SECTION 10.03. Reinstatement |
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77 |
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SECTION 10.04. Subrogation |
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78 |
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SECTION 10.05. Remedies |
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78 |
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SECTION 10.06. Continuing Guarantee |
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78 |
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- iii -
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SCHEDULES |
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SCHEDULE 2.01
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Commitments |
SCHEDULE 2.01A
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Existing Operating Indebtedness |
SCHEDULE 4.02(f)
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Index Debt Ratings |
SCHEDULE 9.01
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Notice Information |
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EXHIBITS |
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EXHIBIT A
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Form of Assignment and Assumption |
EXHIBIT B-1
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Form of Subsidiary Borrower Designation |
EXHIBIT B-2
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Form of Subsidiary Borrower Termination Notice |
EXHIBIT C
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Form of Promissory Note |
EXHIBIT D
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Forms of U.S. Tax Certificates |
- iv -
364-DAY CREDIT AGREEMENT dated as of December 23, 2010 among AMERICAN INTERNATIONAL GROUP,
INC., the SUBSIDIARY BORROWERS party hereto, the LENDERS party hereto and JPMORGAN CHASE BANK,
N.A., as Administrative Agent.
The Company has requested that the Lenders provide a revolving credit facility, and the
Lenders are willing to do so on the terms and conditions set forth herein. The parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
ABR, 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 Alternate Base Rate.
Adjusted LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest
Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
(a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.
Administrative Agent means JPMCB, in its capacity as administrative agent for the
Lenders hereunder.
Administrative Agents Office means the Administrative Agents address as set forth
on Schedule 9.01, or such other address as the Administrative Agent may from time to time notify
the Company and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, when used 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; provided that neither Federal Reserve Bank
of New York nor United States Department of the Treasury shall be deemed to be an Affiliate of any
Loan Party for purposes of this Agreement.
Agents means each of the Administrative Agent and the Syndication Agents.
Agreement Value means, for each Swap Contract, on any date of determination, the
maximum aggregate amount (giving effect to any netting agreements and netting amounts
arising out of intercompany Swap Contracts) that the Company or any Subsidiary would be
required to pay if such Swap Contract were terminated on such date.
364-Day Credit Agreement
- 2 -
AIG FP means AIG Financial Products Corp.
Alternate Base Rate means, for any day, a rate per annum equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such
day plus 0.50% and (c) the Adjusted LIBO Rate for a one month Interest Period (the
Relevant LIBO Rate) on such day (or if such day is not a Business Day, the immediately
preceding Business Day) plus 1.00%; provided that, for avoidance of doubt, the
Relevant LIBO Rate for any day shall be based on the rate appearing on Reuters Page LIBOR01 (or on
any successor or substitute page thereof, or any successor service, providing quotations of
interest rates applicable to Dollar deposits in the London interbank market comparable to those
currently provided on such page, as determined by the Administrative Agent from time to time) at
approximately 11:00 a.m. London time on such day. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Federal Funds Effective Rate or the Relevant LIBO Rate shall be
effective from and including the effective date of such change in the Prime Rate, the Federal Funds
Effective Rate or the Relevant LIBO Rate, respectively.
Applicable Fee Rate means, for any day, a percentage per annum determined by
reference to the Index Debt Ratings applicable on such day as set forth below:
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Applicable |
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Ticking Fee Rate/ Commitment |
Index Debt Ratings |
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Fee Rate |
Category 1
≥ AA- / Aa3
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0.125 |
% |
Category 2
A+ / A1
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0.15 |
% |
Category 3
A / A2
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0.20 |
% |
Category 4
A- / A3
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0.25 |
% |
Category 5
BBB+ / Baa1
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0.30 |
% |
Category 6
≤ BBB / Baa2
or unrated
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0.40 |
% |
Initially, commencing on the Effective Date the Applicable Fee Rate shall be deemed to be in
Category 4 above. Thereafter, each change in the Applicable Fee Rate resulting from a publicly
announced change in the Index Debt Ratings shall be effective during the period commencing on the
date of the public announcement thereof and ending on the date immediately preceding the effective
date of the next such change.
Applicable Percentage means, with respect to any Lender, the percentage of the total
Commitments represented by such Lenders Commitment. If the Commitments have
terminated or expired, the Applicable Percentages shall be determined based upon the
Commitments most recently in effect, giving effect to any assignments.
364-Day Credit Agreement
- 3 -
Applicable Rate means, for any day, a per annum percentage equal to: (a) (subject to
the proviso at the end of this definition), (i) with respect to any ABR Loan, the applicable Credit
Default Swap Spread minus 1.00% (provided that such percentage for purposes of this
clause (a)(i) shall in no event be less than 0%) and (ii) with respect to any Eurodollar Loan, the
applicable Credit Default Swap Spread; and (b) with respect to ticking fees or commitment fees
pursuant to Section 2.09(a) or (b), respectively, the Applicable Fee Rate; provided that,
for any day from and after the Commitment Termination Date with respect to Loans that are converted
to term loans pursuant to Section 2.01(b), the applicable Credit Default Swap Spread for any Type
of Loan shall be equal to the applicable Maximum CDS Spread.
Approved Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignment and Assumption means an assignment and assumption entered into by a
Lender as assignor and an assignee (with the consent of each Person whose consent is required by
Section 9.04(b)), and accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent.
Assuming Lender has the meaning assigned to such term in Section 2.17.
Availability Period means the period from and including the Closing Date to but
excluding the earlier of the Commitment Termination Date and the date of termination of the
Commitments.
Bankruptcy Event means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.
Board means the Board of Governors of the Federal Reserve System of the United
States.
Borrower means any of the Company and the Subsidiary Borrowers, as the context may
require, and Borrowers means all of the foregoing. References herein to the
364-Day Credit Agreement
- 4 -
applicable
Borrower with respect to any Borrowing or Loan shall refer to that Borrower to which such Loan or
Borrowing is (or is to be, as applicable) made by the Lenders.
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 a 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
banks in New York City are authorized or required by Law to remain closed; provided that,
when used in connection with a Eurodollar Loan, the term Business Day shall also exclude
any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Catastrophe Bond means any note, bond or other instrument of Indebtedness or any
Swap Contract or other similar agreement which has a catastrophe, weather or other risk feature
linked to payments thereunder.
CDS Spread Determination Date means (a) with respect to any Eurodollar Loan, the
date which is two Business Days prior to the first day of the Interest Period for such Eurodollar
Loan, and, for such Eurodollar Loans with an Interest Period longer than three months, at the end
of each successive three-month period after the first day of such Interest Period, and (b) with
respect to any ABR Loan, on the Closing Date and the last Business Day of each calendar quarter,
commencing with the calendar quarter in which the Closing Date occurs.
A Change in Control shall be deemed to have occurred if (a) any person or group
(within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
hereof), other than Federal Reserve Bank of New York and United States Department of the Treasury
(the Permitted Investors), shall own, directly or indirectly, beneficially or of record,
shares representing more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of the Company; (b) a majority of the seats (other than vacant seats)
on the board of directors of the Company shall at any time be occupied by persons who were not (i)
nominated by the board of directors of the Company, (ii) appointed by directors so nominated or
(iii) elected with the favorable vote of the Permitted Investors; or (c) any change in control (or
similar event, however denominated) with respect to the Company shall occur under and as defined in
any indenture or agreement in respect of Material Indebtedness to which the Company or any
Subsidiary is a party, which event enables or permits
the holder or holders of such Material Indebtedness or any trustee or agent on its or their
behalf
364-Day Credit Agreement
- 5 -
to cause such Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity.
Change in Law means (a) the adoption of any Law after the date of this Agreement,
(b) any change in any Law or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.12(b), by any lending office of such Lender or by such Lenders holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement; provided that,
notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines, requirements and directives thereunder issued
in connection therewith or in implementation thereof shall be deemed to be a Change in Law,
regardless of the date enacted, adopted, issued or implemented.
Chartis Letter of Credit Agreement means the Letter of Credit and Reimbursement
Agreement dated as of the date hereof among Chartis Inc., the lenders party thereto and JPMCB, as
administrative agent thereunder, and certain other parties thereto.
Closing Date has the meaning assigned to such term in Section 4.02.
Code means the Internal Revenue Code of 1986, as amended.
Commitment means, with respect to each Lender, the commitment of such Lender to make
Loans hereunder, expressed as an amount representing the maximum aggregate amount of such Lenders
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.06, (b) increased from time to time pursuant to Section 2.17 and (c) reduced
or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lenders Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption (or, in the case of any Assuming Lender, the agreement entered into by
such Assuming Lender under Section 2.17) pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders Commitments is
$1,500,000,000 as of the Effective Date.
Commitment Increase has the meaning assigned to such term in Section 2.17.
Commitment Increase Date has the meaning assigned to such term in Section 2.17.
Commitment Termination Date means the date that is 364 days after the Closing Date
(or if such date is not a Business Day, the immediately preceding Business Day).
Company means American International Group, Inc., a Delaware corporation.
Compensation Period has the meaning assigned to such term in Section 2.04(b).
Consolidated Net Worth means, at any date, the total shareholders equity of the
Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP;
364-Day Credit Agreement
- 6 -
provided that there shall be excluded from Consolidated Net Worth (a) accumulated other
comprehensive income (or loss), (b) all noncontrolling interests (as determined in accordance with
the Statement of Financial Accounting Standards No. 160, entitled Noncontrolling Interests in
Consolidated Financial Statements) and (c) amortization of prepaid commitment fees in respect of
the FRBNY Credit Agreement.
Consolidated Total Capitalization means, at any date, the sum of (a) Consolidated
Total Debt plus (b) Consolidated Net Worth.
Consolidated Total Debt means, at any date, without duplication, the sum of (a) the
aggregate amount of all Indebtedness of the Company and its Subsidiaries (excluding (i) all
Operating Indebtedness of the Company and its Subsidiaries and (ii) all Indebtedness of
International Lease Finance Corporation, American General Finance, Inc. and their respective
subsidiaries; provided that, with respect to clause (ii) above, neither the Company nor any other
Subsidiary shall provide any credit support of any kind with respect to such Indebtedness)
plus (b) the aggregate amount of Hybrid Securities, determined on a consolidated basis in
accordance with GAAP.
Contractual Obligation means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.
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 Default Swap Spread mean, at any time with respect to any Loan as at any CDS
Spread Determination Date, the Companys one-year credit default swap mid-rate spread as provided
by Markit Group, Ltd. (Markit) to the Administrative Agent after the close of business on
the Business Day immediately preceding such CDS Spread Determination Date; provided that
the Credit Default Swap Spread with respect to any Loan to any Borrower shall not be (a) less than
the Minimum CDS Spread (as determined below in this definition) (the Minimum CDS
Spread) or (b) greater than the Maximum CDS Spread (as determined below in this definition)
(the Maximum CDS Spread). If for any reason the Credit Default Swap Spread is not
available or is not provided by Markit to the Administrative Agent by 11:00 a.m. New York City time
on any date of determination of the Credit Default Swap Spread, the Company and the Lenders shall
negotiate in good faith, for a period of up to 30 days thereafter (such 30-day period, the
Negotiation Period), to agree on an alternative method for establishing the Credit
Default Swap Spread; provided that (i) the Credit Default Swap Spread applicable to each
CDS Spread Determination Date which falls during the Negotiation Period shall be based upon the
then most recently available Credit Default Swap Spread and (ii) if no such alternative method is
agreed upon during the Negotiation Period, the Credit Default Swap Spread with respect to any Loans
shall be the Credit Default Swap Spread determined under clause (i) above and increased by (A)
0.25% on the first Business Day following the expiration
of the Negotiation Period (the Initial Rate Increase Date) and (B) an additional
0.25% on each succeeding 90-day anniversary of the Initial Rate Increase Date (or if any such
90th day is not a
364-Day Credit Agreement
- 7 -
Business Day, on the immediately succeeding Business Day), in each
case, so long as the Credit Default Swap Spread remains unavailable or is not provided by Markit
and an alternative method for establishing the Credit Default Swap Spread has not been agreed upon
by the Company and the Lenders hereunder (provided that the Credit Default Swap Spread
determined under this clause (ii) shall in no event be less than the Minimum CDS Spread or greater
than the Maximum CDS Spread). For purposes of this definition, Minimum CDS Spread and the
Maximum CDS Spread means, for any day, the applicable percentage per annum set forth below under
the caption Minimum CDS Spread or Maximum CDS Spread, respectively, determined by reference to
the Index Debt Ratings applicable on such day:
|
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|
|
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|
Index Debt Ratings |
|
Minimum CDS Spread |
|
Maximum CDS Spread |
Category 1
≥ AA- / Aa3
|
|
|
0.75 |
% |
|
|
3.25 |
% |
Category 2
A+ / A1
|
|
|
1.00 |
% |
|
|
3.50 |
% |
Category 3
A / A2
|
|
|
1.25 |
% |
|
|
3.75 |
% |
Category 4
A- / A3
|
|
|
1.50 |
% |
|
|
4.00 |
% |
Category 5
BBB+ / Baa1
|
|
|
2.00 |
% |
|
|
4.25 |
% |
Category 6
≤ BBB / Baa2
or unrated
|
|
|
2.50 |
% |
|
|
4.50 |
% |
Default means any event or condition which constitutes an Event of Default or
which, upon notice, lapse of time or both, would constitute an Event of Default.
Default Rate means a rate per annum equal to 2.00% plus the Alternate Base
Rate as in effect from time to time plus the Applicable Rate applicable to ABR Loans;
provided that, with respect to principal of any Eurodollar Loan that shall become due
(whether at stated maturity, by acceleration, by prepayment or otherwise) on a day other than the
last day of the Interest Period therefor, the Default Rate shall be a rate per annum equal to,
for the period from and including such due date to but excluding the last day of such Interest
Period, 2.00% plus the interest rate for such Eurodollar Loan as provided in Section
2.10(b) and, thereafter, the rate provided for above in this definition.
Defaulting Lender means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans or (ii) pay over to
the Administrative Agent or any Lender any other amount required to be paid by it hereunder,
unless, in the case of clause (i) above, (x) such Lender notifies the Administrative Agent in
writing that such failure is the result of such Lenders good
faith determination that a condition
precedent to funding (specifically identified and including the particular default, if any) has not
been satisfied or (y) such failure has been satisfied, (b) has notified the Company or the
Administrative Agent in writing, or has made a public statement to the effect, that it does not
intend or expect to comply with any of its funding obligations under this Agreement (unless
such writing or public statement indicates that such position is based on such Lenders good faith
364-Day Credit Agreement
- 8 -
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent, acting in good faith, to confirm in writing in a manner
satisfactory to the Administrative Agent that it will comply with its funding obligations hereunder
(provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause
(c) upon receipt by the Administrative Agent of such confirmation) or (d) has become the subject of
a Bankruptcy Event.
Department means, with respect to any Insurance Subsidiary, the Governmental
Authority of such Insurance Subsidiarys jurisdiction of domicile with which such Insurance
Subsidiary is required to file its annual statutory financial statement (including any jurisdiction
of domicile deemed to be such by virtue of a commercially domiciled or similar standard).
Designated Subsidiaries means, without duplication, (a) AIG FP, Chartis Inc.,
Chartis International, LLC, Chartis Overseas Limited, Chartis U.S., Inc., National Union Fire
Insurance Company of Pittsburgh, Pa., American Home Assurance Company, AIG Life Holdings (US),
Inc., Western National Life Insurance Company, American General Life Insurance Company, SAFG
Retirement Services, Inc., and SunAmerica Life Insurance Company; (b) any Subsidiary that has total
assets in excess of 10% of the consolidated total assets of the Company and its Subsidiaries (based
upon and as of the date of delivery of the most recent consolidated balance sheet of the Company
furnished pursuant to Section 3.05(a) or 5.01); (c) any Subsidiary formed or organized after the
Effective Date that owns, directly or indirectly, greater than 10% of the Equity Interests in any
other Designated Subsidiary; and (d) each Subsidiary Borrower (so long as it remains a Subsidiary
Borrower hereunder).
Disclosed Matters means any matters disclosed in any Form 10-Q or Form 8-K filed by
the Company with the SEC during the period from and including January 1, 2010 to and including
November 5, 2010.
Disclosed Tax Matters means any matters relating to taxes set forth or accounted for
in the Federal Income Taxes or Income Taxes notes, as applicable, to the Companys consolidated
financial statements in any Form 10-Q or 10-K filed by the Company with the SEC during the period
from and including January 1, 2008 to and including November 5, 2010.
Disposition means the sale, transfer, license, sublicense, lease, sublease or other
disposition (including any sale and leaseback transaction and any sale of Equity Interests) of any
property by any Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Stock means any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an optional
redemption by the issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund
obligation or otherwise, or is redeemable at the option of the holder thereof, in whole or in part,
364-Day Credit Agreement
- 9 -
in each case other than solely for Capital Stock in such Person that does not constitute
Disqualified Stock and cash in lieu of fractional shares of such Capital Stock and at any time on
or prior to the first anniversary of the Commitment Termination Date, or (b) is convertible into or
exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or (ii) any
Equity Interest referred to in clause (a) above (other than solely for Capital Stock in such Person
that do not constitute Disqualified Stock and cash in lieu of fractional shares of such Capital
Stock), in each case at any time prior to the first anniversary of the Commitment Termination Date;
provided, however, that Capital Stock in any Person that would not constitute
Disqualified Stock but for terms thereof giving holders thereof the right to require such Person to
redeem or purchase such Capital Stock upon the occurrence of a disposition or a change of control
shall not constitute Disqualified Stock if any such requirement becomes operative only after
repayment in full of all the Loans and all other Obligations that are accrued and payable.
Dollars or $ refers to lawful money of the United States.
Domestic Subsidiary means any Subsidiary that is incorporated or organized under the
laws of any jurisdiction of the United States, any State thereof or the District of Columbia.
Effective Date has the meaning assigned to such term in Section 4.01.
Environmental Laws means all federal, state, local, municipal and foreign Laws
(including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
injunctions, permits, directives, orders (including consent orders), and legally binding
requirements of any Governmental Authority, in each case concerning the protection of the
environment, natural resources, human health and safety as it relates to any Hazardous Materials or
the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling, disposal or handling of,
or the arrangement for such activities with respect to, Hazardous Materials, in each case not
relating to or arising out of the insurance or reinsurance activities of the Company or the
Subsidiaries.
Environmental Liability means all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of (a) actual or alleged compliance or noncompliance with any
Environmental Law, (b) the generation, manufacture, processing, distribution, use, handling,
transport, storage, treatment, recycling or disposal of, or the arrangement for such activities
with respect to, any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release
of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant
to which a liability or obligation is assumed or imposed with respect to any of the foregoing.
Liabilities of the type described above arising out of the obligation of any Insurance Subsidiary
with respect to its insurance operations shall not constitute Environmental Liabilities
hereunder.
Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity
364-Day Credit Agreement
- 10 -
interests
in any Person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code,
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to such Plan,
whether or not waived, (c) the determination that any Plan is in at-risk status (within the
meaning of Section 430 of the Code and Section 303 of ERISA, (d) the filing pursuant to Section
412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan, (e) the incurrence by the Company or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of any Plan or the
withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or
Multiemployer Plan, (f) the receipt by the Company or any of its ERISA Affiliates from the PBGC or
a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan, (g) the requirement that a Plan provide a security
pursuant to Section 436(f)(i) of the Code, (h) the receipt by the Company or any of its ERISA
Affiliates of any notice, or the receipt by any Multiemployer Plan from the Company or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA, (i) the Company or any of the Subsidiaries engaging in a
prohibited transaction with respect to a plan for which the Company or any of the Subsidiaries is
a disqualified person (within the meaning of Section 4975 of the Code) or with respect to which
the Company or any such Subsidiary could otherwise be liable, (j) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably be expected to result in liability of
the Company or any Subsidiary under Title IV of ERISA or (k) any Foreign Benefit Event.
Eurodollar, 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 Adjusted LIBO Rate.
Event of Default has the meaning assigned to such term in Article VII.
Excluded Taxes means, with respect to any payment made by any Borrower, any of the
following Taxes imposed on or with respect to the Recipient: (a) Other Connection Taxes; (b) Taxes
attributable to such Recipients failure or inability to comply with Section
2.14(f); and (c) U.S. Federal withholding Taxes from a Law in effect (including FATCA) on the
date on which (i) such Recipient acquires directly or indirectly its applicable
364-Day Credit Agreement
- 11 -
ownership interest
in the Loans, participations therein or Commitment (other than a Recipient acquiring its applicable
ownership interest pursuant to Section 2.16(b)) or (ii) such Recipient changes its lending office,
except in each case to the extent that, pursuant to Section 2.14, amounts with respect to such
taxes were payable either to such Recipients assignor immediately before such Recipient became a
Recipient with respect to its applicable ownership interest in the Loans or Commitment or to such
Recipient immediately before it changed its lending office.
FATCA means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof.
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.
Financial Officer means the chief financial officer, principal accounting officer,
treasurer or controller of the Company.
Foreign Benefit Event means, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable Law or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable Law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan, (d) the incurrence of any liability by the Company or any
Subsidiary under applicable Law on account of the complete or partial termination of such Foreign
Pension Plan or the complete or partial withdrawal of any participating employer therein or (e) the
occurrence of any transaction that is prohibited under any applicable Law and that could reasonably
be expected to result in the incurrence of any liability by the Company or any of the Subsidiaries,
or the imposition on the Company or any of the Subsidiaries of any fine, excise tax or penalty
resulting from any noncompliance with any applicable Law.
Foreign Pension Plan means any benefit plan maintained outside of the U.S. primarily
for the benefit of employees working outside the U.S. that under applicable Law is required to be
funded through a trust or other funding vehicle other than a trust or funding vehicle maintained
exclusively by a Governmental Authority.
FRBNY Credit Agreement means the Credit Agreement dated as of September 22, 2008
between the Company and Federal Reserve Bank of New York, as amended.
364-Day Credit Agreement
- 12 -
Fund means any investment vehicle managed by the Company or an Affiliate of the
Company and created in the ordinary course of the Companys asset management business or tax credit
investment business for the purpose of selling and/or holding, directly or indirectly, Equity
Interests in such investment vehicle to third parties.
GAAP means United States generally accepted accounting principles applied on a
consistent basis.
GIC means a guaranteed investment contract or funding agreement or other similar
agreement issued by the Company or any of its Subsidiaries that guarantees to a counterparty a rate
of return on the invested capital over the life of such contract or agreement.
Governmental Authority means any federal, state, local, municipal or foreign court
or governmental agency, authority, instrumentality, regulatory body (including any board of
insurance, insurance department or insurance commissioner), court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
Guarantee of or by any Person means any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the primary obligor) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course of business.
Guaranteed Obligations has the meaning assigned to such term in Section 10.01.
Hazardous Materials means any pollutant, contaminant, waste or any toxic,
radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material,
including petroleum, its derivatives, by-products and other hydrocarbons, coal ash, radon gas,
asbestos, asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorohydrocarbons, and any substance, waste or material regulated under any
Environmental Law.
Hybrid Securities means (a) the Companys 6.25% Series A-1 Junior Subordinated
Debentures, 5.75% Series A-2 Junior Subordinated Debentures, 4.875% Series A-3 Junior Subordinated
Debentures, 6.45% Series A-4 Junior Subordinated Debentures, 7.70% Series A-5 Junior Subordinated
Debentures, 8.175% Series A-6 Junior Subordinated Debentures, 8.00% Series A-7 Junior Subordinated
Debentures and 8.625% Series A-8 Junior
364-Day Credit Agreement
- 13 -
Subordinated Debentures and (b) any similar junior subordinated debt or trust preferred
securities issued by the Company or any of its Subsidiaries after the Effective Date that receive
equivalent hybrid equity treatment from S&P and Moodys.
Increasing Lender has the meaning assigned to such term in Section 2.17.
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, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person, (d) all obligations
of such Person issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed (provided that,
for purposes of this clause (e), if such Person has not assumed or otherwise become personally
liable for any such Indebtedness, the amount of the Indebtedness of such Person in connection
therewith shall be limited to the lesser of (i) the fair market value of such property and (ii) the
amount of Indebtedness secured by such Lien), (f) all Guarantees by such Person of Indebtedness of
others, (g) all Capital Lease Obligations of such Person, (h) all Synthetic Lease Obligations of
such Person, (i) all obligations of such Person as an account party in respect of letters of
credit, (j) all obligations of such Person in respect of bankers acceptances and (k) all
obligations of such person in respect of Disqualified Stock. Indebtedness shall not include: (i)
any obligation of any Person to make any payment, hold funds or securities or to segregate funds or
securities for the benefit of one or more third parties pursuant to any surety or fidelity bond,
any insurance or reinsurance contract or program, any distribution agreement, any program
administrator agreement, managing general agency agreement, third party administrator agreement,
claims services agreement or similar insurance services agreement, or any annuity contract,
variable annuity contract or other similar agreement or instrument (including GICs and financial
guarantees), including any policyholder account, arising in the ordinary course of any such
Persons business; (ii) all other liabilities (or guarantees thereof) of any Person arising in the
ordinary course of any such Persons business as an insurance company, reinsurance company
(including GICs), agency, producer or claims services company or as a provider of financial or
investment services (including GICs); (iii) obligations of any Person under Swap Contracts; (iv)
obligations of any Person under or arising out of any employee benefit plan, employment contract or
other similar arrangement; (v) obligations of any Person under any severance or termination of
employment agreement or plan; (vi) obligations of any Person in respect of the sponsorship of
Catastrophe Bonds transactions; (vii) utilizing proceeds from the disposition of properties (or
interests therein) generating tax credits to secure guarantee obligations to third party investors
in tax credit Funds, or providing guarantees to third-party investors in tax credit Funds to
protect against recapture of previously-allocated tax credits occurring after the disposition of
such properties (or interests therein); (viii) obligations of the Company or any of its
Subsidiaries incurred pursuant to the Recapitalization Documents or in connection with the
transactions contemplated thereby; or (ix) Indebtedness of Subsidiaries that are held for sale (and
accounted for as such under GAAP) as of the Effective Date. The Indebtedness of any Person shall
include the Indebtedness of any partnership (other than Indebtedness that is nonrecourse to such
Person) in which such Person is a general partner.
364-Day Credit Agreement
- 14 -
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by any Borrower under any Loan Document and (b) Other Taxes. For
avoidance of doubt, Indemnified Taxes does not include Taxes imposed by applicable Law on a
distribution or similar payment made by a Lender to a Person that is an owner of such Lender with
respect to its ownership interest in such Lender and distributions and similar payments made by
such owners to their owner.
Index Debt means senior, unsecured, long-term indebtedness for borrowed money of the
Company that is not guaranteed by any other Person or subject to any other credit enhancement.
Index Debt Rating means, as of any date of determination, the rating as determined
by S&P or Moodys of the Index Debt; provided that (a) if either Moodys or S&P shall not
have in effect an Index Debt Rating (other than by reason of the circumstances referred to in the
penultimate sentence of this definition), then such rating agency shall be deemed to have
established an Index Debt Rating in Category 6 of the relevant pricing grids set forth in the
definition of Applicable Fee Rate and Credit Default Swap Spread (each, a pricing
grid); (b) if the Index Debt Rating established or deemed to have been established by Moodys
and S&P shall fall within different rating levels (and, for purposes hereof, a rating level shall
be the comparable rating level for the Moodys rating and the S&Ps rating (i.e., ratings of A-/A3
are the same rating level)), the Applicable Fee Rate, the Minimum CDS Spread and the Maximum CDS
Spread shall be based on the higher of the two ratings, provided that if one of the two
ratings is two or more rating levels lower than the other, the Applicable Fee Rate, the Minimum CDS
Spread and the Maximum CDS Spread shall be determined by reference to the rating level next above
that of the lower of the two ratings; and (c) if the Index Debt Rating established or deemed to
have been established by Moodys and S&P shall be changed (other than as a result of a change in
the rating system of Moodys or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency, irrespective of when notice of such change shall
have been furnished by the Company to the Administrative Agent and the Lenders pursuant to Section
5.02 or otherwise. Each change in the Applicable Fee Rate, the Minimum CDS Spread and the Maximum
CDS Spread resulting from a publicly announced change in the Index Debt Ratings shall be effective
during the period commencing on the date of the public announcement thereof and ending on the date
immediately preceding the effective date of the next such change. If the rating system of Moodys
or S&P shall change, or if either such rating agency shall cease to be in the business of rating
corporate debt obligations, the Company and the Lenders shall negotiate in good faith to amend this
definition to reflect such changed rating system or the unavailability of ratings from such rating
agency and, pending the effectiveness of any such amendment, the Applicable Fee Rate, the Minimum
CDS Spread and the Maximum CDS Spread shall be determined by reference to the ratings most recently
in effect prior to such change or cessation. At any time an Event of Default has occurred and is
continuing, the Applicable Fee Rate, the Minimum CDS Spread and the Maximum CDS Spread shall be
deemed to be in Category 6 of the relevant pricing grids (as defined above in this definition).
Insurance Subsidiary means any Subsidiary that is required to be licensed as an
insurer or reinsurer.
364-Day Credit Agreement
- 15 -
Interest Election Request means a request by a Borrower to convert or continue a
Borrowing in accordance with Section 2.05.
Interest Payment Date means (a) with respect to any ABR Loan, each Quarterly Payment
Date and (b) with respect to any Eurodollar Loan, the last day of each Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of any Interest Period that is more
than three months long, each day prior to the last day of such Interest Period that occurs at
intervals of three months after the first day of such Interest Period.
Interest Period means, with respect to any Eurodollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically corresponding day in the
calendar month that is one, two, three or six months thereafter, as the applicable Borrower may
elect; provided that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case such Interest Period
shall end on the next preceding Business Day and (ii) any Interest Period 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.
IRS means the United States Internal Revenue Service.
Joint Lead Arrangers means the Joint Lead Arrangers and Joint Bookrunners listed on
the cover page of this Agreement.
JPMCB means JPMorgan Chase Bank, N.A.
Laws means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
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 Assumption or an instrument executed by
such Person pursuant to Section 2.17, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption.
LIBO Rate means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute page thereof, or any
successor service, providing quotations of interest rates applicable to Dollar deposits in the
London interbank market comparable to those currently provided on such page, as determined by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for
364-Day Credit Agreement
- 16 -
Dollar deposits with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the LIBO Rate with respect to
such Eurodollar Borrowing for such Interest Period shall be the rate at which Dollar deposits of
$5,000,000 and for a maturity comparable to such Interest Period are offered by the principal
London office of the Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of
such Interest Period.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Loan Documents means, collectively, this Agreement, the promissory notes (if any)
executed and delivered pursuant to Section 2.07(e) and each Subsidiary Borrower Designation.
Loan Parties means, collectively, the Company and the Subsidiary Borrowers.
Loans means the loans made by the Lenders to the Borrowers pursuant to Section 2.01
(including any such loans converted into term loans pursuant to Section 2.01(b)).
Margin Stock means margin stock within the meaning of Regulations T, U and X of
the Board.
Material Adverse Change means a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole, (b) the ability of any Loan Party to perform its obligations under the Loan
Documents or (c) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Administrative Agent and the Lenders thereunder.
Material Indebtedness means Indebtedness (other than the Loans and Indebtedness of a
Subsidiary of the type permitted under Section 6.01(h)), or obligations in respect of one or more
Swap Contracts, of any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $500,000,000. For purposes of determining Material Indebtedness, the principal
amount of the obligations of the Company or any Subsidiary in respect of any Swap Contract at any
time shall be the Agreement Value of such Swap Contract at such time.
Material Subsidiaries means, without duplication, (a) any Designated Subsidiary; (b)
any Subsidiary that has total assets in excess of 2% of the consolidated total assets of the
Company and its Subsidiaries (based upon and as of the date of delivery of the most recent
consolidated balance sheet of the Company furnished pursuant to Section 3.05(a) or 5.01); and (c)
any Subsidiary that owns, directly or indirectly, greater than 10% of the Equity Interests in any
other Material Subsidiary; provided that, notwithstanding the foregoing, so long as Fuji
Fire & Marine Insurance Company, Limited (Fuji Fire & Marine) shall not be a wholly-owned
364-Day Credit Agreement
- 17 -
Subsidiary of the Company, neither Fuji Fire & Marine nor any of its Subsidiaries shall be
considered a Material Subsidiary.
Maximum CDS Spread has the meaning assigned to such term in the definition of
Credit Default Swap Spread.
Minimum CDS Spread has the meaning assigned to such term in the definition of
Credit Default Swap Spread.
Moodys means Moodys Investors Service, Inc.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
NAIC means the National Association of Insurance Commissioners or any successor
thereto, or in the absence of the National Association of Insurance Commissioners or such
successor, any other association, agency or other organization performing advisory, coordination or
other like functions among insurance departments, insurance commissioners and similar Governmental
Authorities of the various states of the United States toward the promotion of uniformity in the
practices of such Governmental Authorities.
Non-U.S. Lender means a Lender that is not a U.S. Person.
Obligations means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Company and the other Loan Parties arising under any Loan Document or otherwise
with respect to any Loans (including with respect to principal, interest, fees and other amounts
payable by the Loan Parties thereunder), whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against the Company, any other
Loan Party or any Affiliate thereof of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization naming such Person as the debtor in such case, proceeding
or action, regardless of whether such interest and fees are allowed claims in such proceeding.
OFAC has the meaning assigned to such term in Section 3.16.
Operating Indebtedness of any Person means, at any date, without duplication, any
Indebtedness of such Person (a) in respect of AXXX, XXX and other similar life reserve
requirements, (b) incurred in connection with repurchase agreements and securities lending, (c) to
the extent the proceeds of which are used directly or indirectly (including for the purpose of
funding portfolios that are used to fund trusts in order) to support AXXX, XXX and other similar
life reserves, (d) to the extent the proceeds of which are used to fund discrete customer-related
assets or pools of assets (and related hedge instruments and capital) that are at least notionally
segregated from other assets and have sufficient cash flow to pay principal and interest thereof,
with insignificant risk of other assets of such Person being called upon to make such principal and
interest payments, (e) incurred as operating leverage and existing as of September 30, 2010 and set
forth in Schedule 2.01A (and any extensions, renewals, exchanges or replacements of such
Indebtedness to the extent the principal amount of such Indebtedness is not
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increased, unless otherwise permitted under another clause of this definition) or (f) incurred after
September 30, 2010 that is excluded entirely from financial leverage by both S&P and Moodys in
their evaluation of such Person.
Organization Documents means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement of formation or organization and any agreement, instrument,
filing or notice with respect thereto filed in connection with its formation or organization with
the applicable Governmental Authority in the jurisdiction of its formation or organization and, if
applicable, any certificate or articles of formation or organization of such entity.
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Taxes (other than a connection solely arising from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
or sold or assigned an interest in any Loan Document). For avoidance of doubt, branch profit taxes
shall be treated as Other Connection Taxes.
Other Credit Agreement means the Three-Year Credit Agreement dated as of the date
hereof between the Company, the subsidiary borrowers party thereto, certain lenders party thereto
and JPMCB, as administrative agent thereunder.
Other Taxes means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes or Taxes imposed with respect to an
assignment or participation.
Participant Register has the meaning assigned to such term in Section 9.04(c).
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Person means any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of
ERISA.
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Potential Divestitures means the potential divestitures by the Company and its
Subsidiaries identified in the letter delivered by the Company in connection with this Agreement to
the Administrative Agent and the Lenders on or prior to the Effective Date.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMCB as its prime rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
Priority Indebtedness means (a) all Indebtedness of the Company that is secured by a
Lien on any property or asset of the Company or its Subsidiaries and (b) all Indebtedness of the
Material Subsidiaries.
Quarterly Payment Date means the last Business Day of each of March, June, September
and December in each year.
Recapitalization Documents means the Master Transaction Agreement dated as of
December 8, 2010 among the Company, the SPVs, Federal Reserve Bank of New York, United States
Department of the Treasury and AIG Credit Facility Trust (including all exhibits).
Recipient means, as applicable, (a) the Administrative Agent and (b) any Lender
(and, in the case of a Lender that is classified as a partnership for U.S. Federal tax purposes, a
Person treated as a beneficial owner thereof for U.S. Federal tax purposes).
Register has the meaning assigned to such term in Section 9.04(b)(iv).
Regulation D means Regulation D of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation T means Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation U means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation X means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Reinsurance Agreements means any agreement, contract, treaty, certificate or other
arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer that is
not an Affiliate of the Company all or part of the liability assumed or assets held by it under one
or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties,
certificates or similar arrangements. Reinsurance Agreements shall include, but not be limited to,
any agreement, contract, treaty, certificate or other arrangement that is treated as such by the
applicable Department.
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Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents, attorneys, accountants and
other professional advisors of such Person and of such Persons Affiliates.
Release means any release, spill, emission, leaking, dumping, pumping, emptying,
escaping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into
or through the environment or within, at, to, under, from or upon any building, structure, facility
or fixture.
Required Lenders means, at any time, Lenders having Revolving Credit Exposures and
unused Commitments representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments at such time; provided that the Revolving Credit Exposure and unused
Commitment of any Defaulting Lender shall be excluded for purposes of making a determination of
Required Lenders.
Responsible Officer means any executive officer or Financial Officer of the Company
and any other officer or similar official thereof responsible for the administration of the
obligations of such Person in respect of this Agreement.
Revolving Credit Exposure means, with respect to any Lender at any time, the
aggregate outstanding principal amount of such Lenders Loans at such time.
S&P means Standard & Poors Ratings Group.
SAP means, with respect to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the insurance commissioner (or other similar authority) in the
domicile of such Insurance Subsidiary for the preparation of annual statements and other financial
reports of such Insurance Subsidiary, which are applicable to the circumstances as of the date of
filing of such statement or report.
SEC means the Securities and Exchange Commission, or any regulatory body that
succeeds to the functions thereof.
SPVs has the meaning assigned to such term in Section 6.02(k).
Statutory Reserve Rate means a fraction (expressed as a decimal), the numerator of
which is the number one and the denominator of which is the number one minus the aggregate
of the maximum reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as Eurocurrency Liabilities in Regulation
D). Such reserve percentages shall include those imposed pursuant to Regulation D. Eurodollar
Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to any Lender under Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change in any reserve percentage.
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subsidiary means, with respect to any Person (herein referred to as the
parent), any corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing more than 50% of the
ordinary voting power or more than 50% of the general partnership or managing limited liability
company interests (as applicable) are, at the time any determination is being made, owned,
Controlled or held directly or indirectly by such parent; provided that no Fund shall be a
subsidiary for the purpose hereof.
Subsidiary means any direct or indirect subsidiary of the Company.
Subsidiary Borrower mean each Subsidiary of the Company that shall become a
Subsidiary Borrower pursuant to Section 2.19, so long as such Subsidiary shall remain a Subsidiary
Borrower hereunder. As of the Effective Date, there are no Subsidiary Borrowers party hereto.
Subsidiary Borrower Designation means a Subsidiary Borrower Designation entered into
by the Company and the applicable Subsidiary of the Company, pursuant to which such Subsidiary
shall (subject to the terms and conditions of Section 2.19) be designated as a Borrower hereunder,
substantially in the form of Exhibit B-1 or any other form approved by the Administrative Agent.
Subsidiary Borrower Termination Notice has the meaning assigned to such term in
Section 2.19(c).
Swap Contract means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
emission rights, spot contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement and (b) any and all transactions of
any kind, and the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a Master
Agreement), including any such obligations or liabilities under any Master Agreement;
provided that Swap Contracts shall not include (i) the stock purchase contracts that
constitute a component of the Hybrid Securities of the Company and its Subsidiaries issued in the
form of equity units and outstanding as of the Effective Date, (ii) any right, option, warrant or
other award made under an employee benefit plan, employment contract or other similar arrangement
or (iii) any right, warrant or option or other convertible or exchangeable security or other
instrument issued by the Company or any Subsidiary or Affiliate of the Company or any Subsidiary
for capital raising purposes.
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Syndication Agents means the Co-Syndication Agents listed on the cover page of this
Agreement.
Synthetic Lease means, as to any Person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is
accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or
obtains ownership of the property so leased for U.S. federal income tax purposes, other than any
such lease under which such Person is the lessor.
Synthetic Lease Obligations means, as to any Person, an amount equal to the
capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a
balance sheet of such Person in accordance with GAAP if such obligations were accounted for as
Capital Lease Obligations.
Taxes means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.
Term Loan Maturity Date has the meaning assigned to such term in Section 2.01(b).
Transactions means the execution, delivery and performance by the Loan Parties of
the Loan Documents, 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
Adjusted LIBO Rate or the Alternate Base Rate.
U.S. or United States means the United States of America.
U.S. Person means a United States person within the meaning of Section 7701(a)(30)
of the Code.
U.S. Tax Certificate has the meaning assigned to such term in Section
2.14(f)(ii)(D)(2).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Withholding Agent means each Loan Party and the Administrative Agent.
SECTION 1.02. 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 definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such
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agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference to any Law shall
include all statutory and regulatory provisions consolidating, amending, replacing or interpreting
such Law and any reference to any Law or regulation shall, unless otherwise specified, refer to
such Law or regulation as from time to time amended, supplemented or otherwise modified, (c) any
reference herein to any Person shall be construed to include such Persons successors and assigns,
(d) 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, (e) 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 and (f) the words asset
and property shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.
SECTION 1.03. Accounting Terms and Determinations. Except as otherwise expressly provided herein, all terms of an
accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to any provision hereof for
such purpose), regardless of whether any such notice is given before or after such change in GAAP
or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective until such notice
shall have been withdrawn or such provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments.
(a) Commitments. Subject to the terms and conditions set forth herein, each Lender
agrees to make Loans to one or more of the Borrowers from time to time during the Availability
Period in an aggregate principal amount that will not result in (a) such Lenders Revolving Credit
Exposure exceeding such Lenders Commitment or (b) the total Revolving Credit Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and conditions set
forth herein, each Borrower may borrow, prepay and reborrow Loans.
(b) Term-Out Option. Notwithstanding anything to the contrary contained in Section
2.07(a), the Company may, by notice to the Administrative Agent not later than 11:00 a.m., New York
City time, three Business Days prior to the Commitment Termination Date, convert all or any portion
of the Loans made to the Company and/or any Subsidiary Borrower
specified in such notice that are
outstanding on the Commitment Termination Date into term loans to the relevant Borrower which shall
mature, and be due and payable, on a date specified in
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such notice which shall not be later than
the first anniversary of the Commitment Termination Date (or, if such date is not a Business Day,
the immediately preceding Business Day) (such maturity date, the Term Loan Maturity Date)
(which notice shall also contain such information with respect to such Loans being so converted,
including the Type of Loans and, if applicable, the Interest Period, as reasonably required by the
Administrative Agent); provided that such conversion is subject to the satisfaction of the
following conditions on the Commitment Termination Date: (i) no Default shall have occurred and be
continuing; (ii) the representations and warranties of the Company and each Subsidiary Borrower (if
any) set forth in this Agreement and the other Loan Documents (excluding those representations and
warranties contained in Section 3.05(b) (but only as to clauses (a) and (b) of the definition of
Material Adverse Change) and Section 3.07(a) and (c)) shall be true and correct in all material
respects (or, in the case of any such representations and warranties qualified as to materiality,
in all respects) on and as of the date of such conversion (or, if any such representation or
warranty is expressly stated to have been made as of a specified date, as of such specified date);
(iii) the payment by the Company of the term-out fees pursuant to Section 2.09(c); and (iv) the
receipt by the Administrative Agent of a certificate of a Responsible Officer stating that the
conditions specified in the foregoing clauses (i), (ii) and (iii) have been satisfied; and
provided, further, that, after giving effect to such conversion, the Lenders shall
have no further obligation to make Loans hereunder. Each Loan so converted shall bear interest,
until the payment in full thereof, at the rates that Loans of the same Type bear pursuant to this
Agreement and shall otherwise constitute a Loan for all purposes of this Agreement.
SECTION 2.02. Loans and Borrowings.
(a) Obligations of Lenders. Each Loan shall be made as part of a Borrowing consisting
of Loans of the same Type made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lenders failure to make Loans
as required.
(b) Type of Loans. Subject to Section 2.11, each Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the applicable Borrower may request in accordance
herewith. 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 applicable Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the commencement of the
Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount of
$10,000,000 or a larger multiple of $1,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount equal to $10,000,000 or a larger multiple of $1,000,000;
provided that an ABR 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 ten
Eurodollar Borrowings outstanding.
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(d) Limitations on Lengths of Interest Periods. Notwithstanding any other provision
of this Agreement, no Borrower shall be entitled to request, or to elect to convert to or continue
as a Eurodollar Borrowing, any Borrowing if the Interest Period requested therefor would end (i)
after the Commitment Termination Date or (ii) in the case of any Loans that are converted into term
loans pursuant to Section 2.01(b), after the Term Loan Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a Borrowing, a 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., New York City time,
three Business Days before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 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 applicable Borrower and (if such Borrower is not the
Company) the Company. Each such telephonic and written Borrowing Request shall specify the
following information in compliance with Section 2.02:
(i) the identity of the applicable Borrower;
(ii) the aggregate amount of the requested Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the Interest Period therefor, which shall be
a period contemplated by the definition of the term Interest Period; and
(vi) the location and number of the applicable Borrowers account to which funds are to
be disbursed, which shall comply with the requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an
ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar
Borrowing, then the applicable Borrower shall be deemed to have selected an Interest Period of one
months 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 Lenders Loan to be made as part of the requested Borrowing.
SECTION 2.04. Funding of Borrowings.
(a) Funding by Lenders. 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 (or, in
the case of an ABR Borrowing, 2:00 p.m.), New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative
Agent will make such Loans available to the applicable Borrower by promptly crediting the amounts
so received, in like funds, to an account of such
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Borrower or the Company maintained with the
Administrative Agent in New York City and designated by such Borrower in the applicable Borrowing
Request.
(b) Presumption by Administrative Agent. 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 Lenders 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 applicable Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender agrees to pay to the Administrative Agent forthwith on demand such corresponding
amount with interest thereon, for each day from and including the date such amount is made
available to such Borrower to but excluding the date of payment to the Administrative Agent (the
Compensation Period), at the greater of (i) the Federal Funds Effective Rate from time to
time in effect and (ii) a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lenders Loan included in such Borrowing. If such
Lender does not pay such amount forthwith upon the Administrative Agents demand therefor, the
Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower
shall pay such amount to the Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which the Administrative Agent, any Lender or any Borrower
may have against any other Lender as a result of any default by such Lender hereunder.
SECTION 2.05. Interest Elections.
(a) Elections by Borrowers for Borrowings. Each Borrowing initially shall be of the
Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have the Interest Period specified in such Borrowing Request. Thereafter, the applicable
Borrower may elect to convert such Borrowing to a Borrowing of a different Type or
to continue such Borrowing as a Borrowing of the same Type and, in the case of a Eurodollar
Borrowing, may elect the Interest Period therefor, all as provided in this Section. Such Borrower
may elect different options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the Loans constituting
such Borrowing, and the Loans constituting each such portion shall be considered a separate
Borrowing.
(b) Notice of Elections. To make an election pursuant to this Section, the applicable
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 such 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 such Borrower and (if such Borrower is not
the Company) the Company.
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(c) Information in Interest Election Requests. 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 allocated to each resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) of this paragraph 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 an ABR Borrowing or a Eurodollar
Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor
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 applicable Borrower shall be deemed to have selected an Interest Period
of one months duration.
(d) Notice by Administrative Agent to Lenders. Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof
and of such Lenders portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the applicable Borrower fails to deliver
a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period therefor, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be
converted to or continued as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar
Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.06. Termination and Reduction of Commitments.
(a) Scheduled Termination. Unless previously terminated, the Commitments shall
terminate on the Commitment Termination Date. Unless the Closing Date shall have occurred at or
prior to 3:00 p.m., New York City time, on March 31, 2011, this Agreement and the Commitments shall
automatically terminate at such time.
(b) Voluntary Termination or Reduction. The Company may at any time terminate the
Commitments and this Agreement or from time to time reduce the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000 or
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a larger
multiple of $1,000,000 and (ii) the Company shall not terminate or reduce the Commitments if, after
giving effect to any concurrent prepayment of the Loans in accordance with Section 2.08, the total
Revolving Credit Exposures would exceed the total Commitments. Notwithstanding the termination of
the Commitments, this Agreement shall not terminate, and the obligations of the Loan Parties under
this Agreement shall continue in full force and effect until such time as all principal of or
accrued interest on the Loans and all fees and other amounts payable under this Agreement or any
other Loan Document have been paid in full.
(c) Notice of Voluntary Termination or Reduction. The Company shall notify the
Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of
this Section at least two Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly following receipt of
any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt.
(a) Repayment. Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for account of the Lenders the outstanding principal amount of the Loans made
to such Borrower (i) in the case of Loans to such Borrower that are not converted to term loans
pursuant to Section 2.01(b), on the Commitment Termination Date and (ii) in the case of
any Loans to such Borrower that are converted to term loans pursuant to Section 2.01(b), on
the Term Loan Maturity Date.
(b) Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender to such Borrower, including the amounts of
principal and interest payable and paid to such Lender by such Borrower from time to time
hereunder.
(c) Maintenance of Loan Accounts by Administrative Agent. The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each Loan made to a Borrower
hereunder, the Type thereof and each Interest Period therefor, (ii) the amount of any principal or
interest due and payable or to become due and payable from any Borrower to each Lender hereunder
and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the
Lenders and each Lenders share thereof.
(d) Effect of Entries. 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
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of the Borrowers to repay the Loans in accordance with the terms of this
Agreement. In the event of any conflict between the records of the Administrative Agent and the
records of a Lender, the records of the Administrative Agent shall control absent manifest error.
(e) Promissory Notes. Any Lender may request that Loans made by it to any Borrower be
evidenced by a promissory note. In such event, such Borrower shall prepare, execute and deliver to
such Lender a promissory note payable to such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) substantially in the form of Exhibit C or any other form
approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and
interest thereon shall at all times (including after assignment pursuant to Section 9.04) be
represented by one or more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and its registered
assigns).
SECTION 2.08. Prepayment of Loans.
(a) Optional Prepayments. Each applicable Borrower shall have the right at any time
and from time to time to prepay any Borrowing made to such Borrower in whole or in part, subject to
the requirements of paragraph (b) of this Section.
(b) Notices, Etc. The applicable Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of any
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the
date of prepayment (which shall be a Business Day) or (ii) in the case of prepayment of any ABR
Borrowing, not later than 11:00 a.m., New York City time, on the date of prepayment (which shall be
a Business Day). Each such notice shall be irrevocable and
shall specify the prepayment date and the principal amount of each Borrowing or portion
thereof to be prepaid; provided that, if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Commitments as contemplated by Section
2.06, then such notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.06. Promptly following receipt of any such notice relating to a
Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial
optional prepayment of any Borrowing shall be in an amount that would be permitted in the case 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, together with amounts, if any, payable
pursuant to Section 2.13.
SECTION 2.09. Fees.
(a) Ticking Fees. The Company agrees to pay to the Administrative Agent for account
of each Lender a ticking fee, which shall accrue at a rate per annum equal to the Applicable Rate
on the amount of the Commitment of such Lender during the period from and including the Effective
Date to but excluding the earlier of the date on which such Commitment terminates and the Closing
Date. Accrued ticking fees shall be payable on each Quarterly Payment Date and on the earlier of
the Closing Date and the date on which the Commitment terminates, commencing on the first such date
to occur after the Effective Date.
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(b) Commitment Fees. The Company agrees to pay to the Administrative Agent for
account of each Lender a commitment fee, which shall accrue at a rate per annum equal to the
Applicable Rate on the average daily unused amount of the Commitment of such Lender during the
period from and including the Closing Date to but excluding the earlier of the date such Commitment
terminates or the Commitment Termination Date. Accrued commitment fees shall be payable on each
Quarterly Payment Date and on the earlier of the date on which the Commitment terminates and the
Commitment Termination Date, commencing on the first such date to occur after the Closing Date.
(c) Term-Out Fees. In the event that the Company exercises the option to convert
Loans outstanding on the Commitment Termination Date into term loans pursuant to Section 2.01(b),
the Company agrees to pay to the Administrative Agent for account of each Lender a term-out fee
equal to 1.00% of the aggregate principal amount of the Loans of such Lender that are so converted,
payable on the Commitment Termination Date.
(d) Administrative Agent Fees. The Company agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between
the Company and the Administrative Agent.
(e) Payment of Fees; Computation of Fees. All fees payable hereunder shall be paid on
the dates due, in immediately available funds, to the Administrative Agent for distribution, in the
case of commitment, ticking or term-out fees, to the Lenders entitled thereto. Fees paid shall not
be refundable under any circumstances. All fees payable under paragraph (a)
or (b) of this Section shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but excluding the last day).
SECTION 2.10. Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear interest at a
rate per annum equal to the Alternate Base Rate plus the Applicable Rate.
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing plus the Applicable Rate.
(c) Default Interest. If any amount of principal of any Loan, interest or any other
amount payable by any Loan Party under any Loan Document is not paid when due (without regard to
any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such
amount shall thereafter bear interest at a rate per annum at all times equal to the Default Rate to
the fullest extent permitted by applicable Laws. Without duplication of amounts payable under the
preceding sentence, while any Event of Default pursuant to clause (g) or (h) of Article VII exists
and, upon request by the Required Lenders, while any other Event of Default exists, the applicable
Borrower shall pay interest on the principal amount of all outstanding Loans made to such Borrower
at a rate per annum at all times equal to the Default Rate to the fullest extent permitted by
applicable Laws.
(d) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the Commitments;
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provided
that (i) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Loan prior to the Commitment Termination Date or, in the case of any Loans that are converted to
term loans pursuant to Section 2.01(b), the Term Loan Maturity Date), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and
(iii) in the event of any conversion of any Eurodollar Borrowing prior to the end of the Interest
Period therefor, accrued interest on such Borrowing shall be payable on the effective date of such
conversion.
(e) Computation. All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate at times when the
Alternate Base Rate is based on 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 Alternate Base Rate
or Adjusted LIBO Rate shall 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 the 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
Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO
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 Company and the Lenders by telephone
or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the
Company 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 an ABR Borrowing.
SECTION 2.12. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for account of, or credit extended by, any
Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London interbank market any other condition affecting
this Agreement or Eurodollar Loans made by such Lender; or
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(iii) subject any Recipient to any Taxes (other than (A) FATCA, (B) Indemnified Taxes
and (C) Other Connection Taxes on gross or net income, profits, franchise or revenues or
taxes in lieu thereof (including value-added or similar Taxes)) on its Loans (including
principal amount thereof), Commitments or other obligations hereunder, or its deposits,
reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing shall be to increase the cost to such Lenders or such other
Recipient of making or maintaining any Eurodollar Loan (or of maintaining its obligation to make
any such Loan) or to reduce the amount of any sum received or receivable by such Lender or such
other Recipient hereunder (whether of principal, interest or otherwise), then the Company will pay
to such Lender or such other Recipient, as the case may be, such additional amount or amounts as
will compensate such Lender or such other Recipient, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return on such Lenders
capital or on the capital of such Lenders holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such Lender or
such Lenders holding company could have achieved but for such Change in Law (taking into
consideration such Lenders policies and the policies of such Lenders holding company with respect
to capital adequacy), then from time to time the Company will pay to such Lender such additional
amount or amounts as will compensate such Lender or such Lenders holding company for any such
reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such Lenders right to
demand such compensation; provided that the Company shall not be required to compensate a
Lender pursuant to this Section for any increased costs or reductions incurred more than 180 days
prior to the date that such Lender notifies the Company of the Change in Law giving rise to such
increased costs or reductions and of such Lenders intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.13. Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other
than on the
last day of an Interest Period therefor (including as a result of an Event of Default), (b) the
conversion of any Eurodollar Loan other than on the last day of an Interest Period therefor, (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 therewith), or (d) the assignment of any Eurodollar
Loan other than on the last day of
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an Interest Period therefor as a result of a request by the
Company pursuant to Section 2.16, then, in any such event, the applicable 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
determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that
such Lender would pay for a deposit equal to the principal amount of such Loan for the period from
the date of such payment, conversion, failure or assignment to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the
duration of the Interest Period that would have resulted from such borrowing, conversion or
continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate for
such Interest Period, over (ii) the amount of interest 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
Dollar deposits 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 applicable Borrower and (if such
Borrower is not the Company) the Company and shall be conclusive
absent manifest error. Such Borrower shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
SECTION 2.14. Taxes.
(a) Withholding of Taxes; Gross-Up. Each payment by any Loan Party under any Loan
Document shall be made without withholding for any Taxes, unless such withholding is required by
any Law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that
it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely
pay the full amount of withheld Taxes to the relevant Governmental Authority in accordance with
applicable Law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party
shall be increased as necessary so that, net of such withholding (including such withholding
applicable to additional amounts payable under this Section), the applicable Recipient receives the
amount it would have received had no such withholding been made.
(b) Payment of Other Taxes by Loan Parties. Each Loan Party shall timely pay any
Other Taxes to the relevant Governmental Authority in accordance with applicable Law.
(c) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes by any Loan Party to a Governmental Authority, such Loan Party 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.
(d) Indemnification by Loan Parties. The Loan Parties shall jointly and severally
indemnify each Recipient for any Indemnified Taxes that are paid or payable by such Recipient in
connection with any Loan Document (including amounts payable under this Section 2.14(d)) and any
reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified
Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.14(d) shall be paid within 10 days
364-Day Credit Agreement
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after the Recipient delivers to
any Loan Party a certificate stating the amount of any Indemnified Taxes so payable by such
Recipient and describing the basis for the indemnification claim. Such certificate shall be
conclusive of the amount so payable absent manifest error. Such Recipient shall deliver a copy of
such certificate to the Administrative Agent. In the case of any Lender making a claim under this
Section 2.14(d) on behalf of any of its beneficial owners, an indemnity payment under this Section
2.14(d) shall be due only to the extent that such Lender is able to establish that, with respect to
the applicable Indemnified Taxes, such beneficial owners supplied to the applicable Persons such
properly completed and executed documentation necessary to claim any applicable exemption from, or
reduction of, such Indemnified Taxes.
(e) Indemnification by Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent
that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Loan Parties to do so) and the Loan
Parties for any Excluded Taxes, in each case attributable to such Lender that are paid or
payable by the Administrative Agent or the applicable Loan Party (as applicable) in connection with
any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or
not such Taxes or Excluded Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. The indemnity under this Section 2.14(e) shall be paid within 10 days
after the Administrative Agent or the applicable Loan Party (as applicable) delivers to the
applicable Lender a certificate stating the amount of Taxes or Excluded Taxes so paid or payable by
the Administrative Agent or the applicable Loan Party (as applicable). Such certificate shall be
conclusive of the amount so paid or payable absent manifest error.
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under any Loan Document
shall deliver to the Company and the Administrative Agent, at the time such Lender becomes a Lender
hereunder or at times prescribed by Law or reasonably requested by the Company or the
Administrative Agent, such properly completed and executed documentation prescribed by Law or
reasonably requested by the Company or the Administrative Agent as will permit such payments to be
made without, or at a reduced rate of, withholding, unless a Change in Law prevents such Lender
from legally being able to complete, execute or deliver such form. In addition, any Lender, if
requested by the Company or the Administrative Agent, shall deliver such other documentation
prescribed by Law or reasonably requested by the Company or the Administrative Agent as will enable
the applicable Borrower or the Administrative Agent to determine whether or not such Lender is
subject to any withholding (including backup withholding) or information reporting requirements.
Upon the reasonable request of the Company or the Administrative Agent, any Lender shall update any
form or certification previously delivered pursuant to this Section 2.14(f). If any form or
certification previously delivered pursuant to this Section expires or becomes obsolete or
inaccurate in any respect with respect to a Lender, such Lender shall promptly (and in any event
within 10 days after such expiration, obsolescence or inaccuracy) notify the Company and the
Administrative Agent in writing of such expiration, obsolescence or inaccuracy and update the form
or certification if it is legally eligible to do so.
(ii) Without limiting the generality of the foregoing, if any Loan Party is a U.S. Person, any
Lender with respect to such Loan Party shall, if it is legally eligible to do so,
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deliver to such
Loan Party and the Administrative Agent (in such number of copies reasonably requested by such Loan
Party and the Administrative Agent) on or prior to the date on which such Lender becomes a party
hereto, duly completed and executed copies of whichever of the following is applicable:
(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such
Lender is exempt from U.S. Federal backup withholding tax;
(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to
which the United States is a party (1) with respect to payments of interest under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the interest article of such tax treaty and (2) with respect
to any other applicable payments under any Loan Document, IRS Form W-8BEN establishing an
exemption from, or reduction of, U.S.
Federal withholding Tax pursuant to the business profits or other income article of
such tax treaty;
(C) in the case of a Non-U.S. Lender for whom payments under the Loan Documents
constitute income that is effectively connected with such Lenders conduct of a trade or
business in the United States, IRS Form W-8ECI;
(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a
certificate substantially in the applicable form attached as part of Exhibit D (a U.S.
Tax Certificate) to the effect that such Lender is not (a) a bank within the meaning
of Section 881(c)(3)(A) of the Code, (b) a 10 percent shareholder of the Company within
the meaning of Section 881(c)(3)(B) of the Code (c) a controlled foreign corporation
described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the
United States with which the relevant interest payments are effectively connected;
(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made
under this Agreement (including a partnership or a participating Lender) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C),
(D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner
or partner of such partnership if such beneficial owner or partner were a Lender;
provided, however, that if such Lender is a partnership and one or more of
its partners are claiming the exemption for portfolio interest under Section 881(c) of the
Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or
(F) any other form prescribed by Law as a basis for claiming exemption from, or a
reduction of, U.S. Federal withholding Tax together with such supplementary documentation
necessary to enable the applicable Loan Party or the Administrative Agent to determine the
amount of Tax (if any) required by Law to be withheld.
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(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times
prescribed by Law and at such time or times reasonably requested by the Withholding Agent, such
documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Withholding Agent as may be
necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that
such Lender has or has not complied with such Lenders obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this Section 2.14(f)(iii),
FATCA shall include any amendments made to FATCA after the date of this Agreement.
(g) Treatment of Certain Refunds. If any Lender or the Administrative Agent
reasonably determines that it has received a refund, in cash or applied as an offset against other
cash tax liability, of any Taxes as to which it has been indemnified pursuant to this Section
(including additional amounts paid pursuant to this Section), such indemnified party shall pay to
the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments
made under this Section with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid to such indemnifying party pursuant to the previous sentence (plus any
interest imposed by the relevant Governmental Authority) in the event such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this Section 2.14(g), in no event will any indemnified party be required to pay any
amount to any indemnifying party pursuant to this Section 2.14(g) to the extent such payment would
place such indemnified party in a less favorable position (on a net after-Tax basis) than such
indemnified party would have been in if the indemnification payments or additional amounts giving
rise to such refund had never been paid. This Section 2.14(g) shall not be construed to require
any indemnified party to make available its Tax returns (or any other information relating to its
Taxes which it deems confidential) to the indemnifying party or any other Person.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Payments by Borrowers. Each Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest or fees, or under Section 2.12, 2.13 or 2.14, or
otherwise) prior to 1:00 p.m., New York City time, on the date when due, 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 the Administrative Agents Office, except that payments pursuant to
Sections 2.12, 2.13, 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for account of any other
Person to the appropriate recipient promptly following receipt
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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) Application of Insufficient Payments. 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, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, to pay principal then due
hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal
then due to such parties.
(c) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of its Loans resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Loans and accrued interest thereon then due than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans of other Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans; provided
that (i) if any such participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase price restored to the
extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be
construed to apply to any payment made by any Loan Party 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 Company or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Loan Party consents to the foregoing and agrees, to the extent it may
effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against such Loan Party rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct creditor of such Loan Party
in the amount of such participation.
(d) Presumptions of Payment. Unless the Administrative Agent shall have received
notice (which notice shall be effective upon receipt) from the applicable Borrower prior to the
date on which any payment is due to the Administrative Agent for account of the Lenders hereunder
that such Borrower will not make such payment, the Administrative Agent may assume that such
Borrower has made such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders the amount due. In such event, if the applicable 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.
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(e) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.04(b), 2.15(d) or 9.03(c), then the
Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i)
apply any amounts thereafter received by the Administrative Agent for the account of such Lender
and for the benefit of the Administrative Agent to satisfy such Lenders obligations under such
Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts
in a segregated account as cash collateral for, and application to, any future funding obligations
of such Lender under such Sections, in the case of each of clauses (i) and (ii) above, in any order
as determined by the Administrative Agent in its discretion.
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.12, or if any Loan Party is required to pay any additional amount to any Lender or
any Governmental Authority for account of any Lender pursuant to Section 2.14, then such Lender
shall use reasonable efforts to designate a different lending office for funding or booking its
Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i)
would eliminate or reduce amounts payable pursuant to Section 2.12 or 2.14, as the case may be, in
the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs
and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If (i) any Lender requests compensation under Section
2.12, (ii) any Loan Party is required to pay any additional amount to any Lender or any
Governmental Authority for account of any Lender pursuant to Section 2.14 or (iii) any Lender
becomes a Defaulting Lender, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse, 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 (A) such assignment shall be effected in accordance with and
subject to the restrictions contained in Section 9.04 and such assignee (if not a Lender) shall
have been approved by the Administrative Agent (which approval shall not unreasonably be withheld),
(B) 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
Company (in the case of all other amounts), (C) with respect to an assignment as a result of clause
(iii) above, the assignment fee shall be paid to the Administrative Agent by the Company and (D) in
the case of any such assignment resulting from a claim for compensation under Section 2.12 or
payments required to be made pursuant to Section 2.14, such assignment will result in a reduction
in such compensation or payments. 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 Company to require such assignment and delegation cease to apply.
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SECTION 2.17. Increase in Commitments. The Company may, at any time after the Closing Date by notice to the Administrative
Agent,
propose an increase in the total Commitments hereunder (each such proposed increase being a
Commitment Increase) either by having a Lender increase its Commitment then in effect
(each an Increasing Lender) or by having a Person which is not then a Lender become a
party hereto as a Lender with a new Commitment hereunder (each an Assuming Lender), in
each case, with the approval of the Administrative Agent (not to be unreasonably withheld). Such
notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as applicable,
(ii) the amount of the Commitment Increase and the portion thereof being committed to by each such
Increasing Lender or Assuming Lender and (iii) the date on which such Commitment Increase is to be
effective (a Commitment Increase Date)
(which shall be a Business Day at least five Business Days after delivery of such notice and
30 days prior to the Commitment Termination Date).
Each Commitment Increase shall be subject to the following additional conditions:
(i) unless the Administrative Agent otherwise agrees, the Commitment of any Assuming
Lender as part of any Commitment Increase shall be in a minimum amount of at least
$25,000,000;
(ii) unless the Administrative Agent otherwise agrees, each Commitment Increase shall be
in an amount of at least $25,000,000;
(iii) immediately after giving effect to any Commitment Increase, the total Commitments
hereunder shall not exceed $2,000,000,000;
(iv) no Default has occurred and is continuing on the relevant Commitment Increase
Date or shall result from any Commitment Increase; and
(v) the representations and warranties of the Loan Parties set forth in this Agreement
and the other Loan Documents shall be true and correct in all material respects (or, in the
case of such representations and warranties qualified as to materiality, in all respects) on
and as of the relevant Commitment Increase Date as if made on and as of such date (or, if
any such representation or warranty is expressly stated to have been made as of a specific
date, as of such specific date).
Each Commitment Increase (and the increase of the Commitment of each Increasing Lender and/or
the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become
effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on
or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate
of a Responsible Officer stating that the conditions with respect to such Commitment Increase under
this Section have been satisfied and (b) an agreement, in form and substance satisfactory to the
Company and the Administrative Agent, pursuant to which, effective as of such Commitment Increase
Date, each such Increasing Lender and/or such Assuming Lender, as applicable, shall provide its
Commitment (or an increase of its Commitment, as applicable), duly executed by each such Lender and
the Borrowers and acknowledged by the Administrative Agent. Upon the Administrative Agents
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receipt of a fully executed agreement from each such Increasing Lender and/or Assuming Lender,
together with such certificate of such Responsible Officer, the Administrative Agent shall record
the information contained in such agreement in the Register and give prompt notice of the relevant
Commitment Increase to the Company and the Lenders (including, if applicable, each Assuming
Lender). On each Commitment Increase Date, if there are Loans then outstanding, each applicable
Borrower shall simultaneously (i) prepay in full the outstanding Loans made to such Borrower
immediately prior to giving effect to the relevant Commitment Increase in accordance with Section
2.08 and (ii) at such Borrowers option in accordance with this Agreement, such Borrower may
request to borrow new Loans from all the Lenders (including, if applicable, any Assuming Lender)
such that, after giving effect thereto, the Loans
are held ratably by the Lenders in accordance with their respective Commitments (after giving
effect to such Commitment Increase).
Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree
to increase its Commitment hereunder and any election to do so shall be in the sole discretion of
such Lender.
SECTION 2.18. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender: (a) fees shall cease to accrue on the unused amount of the Commitment of such
Defaulting Lender pursuant to Section 2.09(a) or (b), as applicable; and (b) the Commitment and
Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether
all Lenders or the Required Lenders have taken or may take any action hereunder (including any
consent to any amendment or waiver pursuant to Section 9.02), except that (i) the Commitment of any
Defaulting Lender may not be increased or extended without the consent of such Lender and (ii) any
waiver, amendment or other modification requiring the consent of all Lenders or each affected
Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders
shall require the consent of such Defaulting Lender. In the event that the Administrative Agent
and the Company each agrees that a Defaulting Lender has adequately remedied all matters that
caused such Lender to be a Defaulting Lender, then on such date such Lender shall purchase at par
such of the Loans then outstanding of the other Lenders as the Administrative Agent shall determine
may be necessary in order for such Lender to hold such Loans in accordance with its Applicable
Percentage, whereupon such Lender shall no longer be a Defaulting Lender.
SECTION 2.19. Designation of Subsidiary Borrowers. (a) Designation of Subsidiary Borrowers. Subject to the terms and
conditions of
this Section, the Company may, at any time or from time to time after the Closing Date upon not
less than 10 Business Days notice to the Administrative Agent (or such shorter period which is
acceptable to the Administrative Agent), designate a wholly-owned, direct or indirect Domestic
Subsidiary of the Company to become a party to this Agreement as a Subsidiary Borrower;
provided that each such designation shall be subject to the prior approval of the
Administrative Agent (which approval shall not be unreasonably withheld). Upon receipt of such
notice under this Section, the Administrative Agent shall promptly notify each Lender thereof.
Upon such approval and the satisfaction of the conditions specified in paragraph (b) of this
Section, such Subsidiary shall become a party to this Agreement as a Subsidiary Borrower hereunder
and shall be entitled to borrow Loans on and subject to the terms and conditions of this Agreement,
and the Administrative Agent shall
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promptly notify the Lenders of the effectiveness of such
designation. Following the giving of any notice pursuant to this Section, if the designation of
such Subsidiary Borrower obligates the Administrative Agent or any Lender to comply with know your
customer or similar identification procedures in circumstances where the necessary information is
not already available to it, the Company shall, promptly upon the request of the Administrative
Agent or any Lender, supply such documentation and other evidence as is reasonably requested by the
Administrative Agent or any Lender in order for the
Administrative Agent or such Lender to carry out and be satisfied it has complied with the
results of all necessary know your customer or other similar checks under all applicable Laws and
regulations.
(b) Conditions Precedent to Designation. The designation by the Company of any
Subsidiary as a Subsidiary Borrower hereunder shall not become effective until the date on which
the Administrative Agent shall have received each of the following documents (each of which shall
be satisfactory to the Administrative Agent in form and substance): (i) a Subsidiary Borrower
Designation, duly completed and executed by the Company and such Subsidiary, delivered to the
Administrative Agent at least 5 Business Days before the date on which such Subsidiary is proposed
to become a Subsidiary Borrower; (ii) a favorable written opinion (addressed to the Administrative
Agent and the Lenders and appropriately dated) of external or internal counsel to such Subsidiary
satisfactory to the Administrative Agent (and the Company and such Subsidiary Borrower hereby, and
by delivery of such Subsidiary Borrower Designation, instruct such counsel to deliver such opinion
to the Administrative Agent and the Lenders), as to such matters as are consistent with the scope
of the opinion of counsel to the Company delivered pursuant to Section 4.02(j) and/or such other
matters as the Administrative Agent may reasonably request; and (iii) such documents and
certificates as the Administrative Agent may reasonably request in connection therewith (including
certified copies of the Organization Documents of such Subsidiary and of resolutions of its board
of directors or similar governing body authorizing such Subsidiary becoming a Borrower hereunder,
and of all documents evidencing all other necessary corporate or other action required with respect
to such Subsidiary Borrower becoming party to this Agreement).
(c) Termination of Subsidiary Borrower. So long as there shall be no Loans
outstanding to a Subsidiary Borrower or other amounts owing hereunder or under the other Loan
Documents by such Subsidiary Borrower (or any pending Borrowing Request by such Subsidiary
Borrower), the Company may elect to terminate such Subsidiary Borrower as a Borrower hereunder by
delivering to the Administrative Agent a notice substantially in the form of Exhibit B-2 or any
other form approved by the Administrative Agent (each a Subsidiary Borrower Termination
Notice), duly completed and executed. Any Subsidiary Borrower Termination Notice furnished
hereunder shall be effective upon receipt thereof by the Administrative Agent (which shall promptly
so notify the Lenders), whereupon all commitments of the Lenders to make Loans to such Subsidiary
Borrower and the rights of such Subsidiary Borrower to borrow hereunder shall terminate and such
Subsidiary Borrower shall immediately cease to be a Borrower hereunder and a party hereto;
provided that, notwithstanding anything herein to the contrary, the delivery of a
Subsidiary Borrower Termination Notice with respect to any Subsidiary Borrower shall not terminate
or discharge (i) any obligation of such Subsidiary Borrower that remains unpaid at such time or
(ii) the obligations of the Company under Article X with respect to any such unpaid obligations.
Notwithstanding anything herein to the contrary, upon the occurrence of any event described in
clause (g) or (h) of Article VII with respect to any
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Subsidiary Borrower, or if at any time any
Subsidiary Borrower shall cease to be a wholly-owned, direct or indirect Domestic Subsidiary of the
Company, (i) all commitments of the Lenders to make Loans to such Subsidiary Borrower and the
rights of such Subsidiary Borrower to borrow hereunder shall automatically terminate and such
Subsidiary Borrower shall immediately cease to be a Subsidiary Borrower hereunder and a party
hereto and (ii) the principal amount then outstanding of, and the accrued interest on, the Loans
(if any) made to
such Subsidiary Borrower and all other amounts payable by such Subsidiary Borrower hereunder
(including any amounts payable under Section 2.13) and under the other Loan Documents shall
automatically become immediately due and payable, in each case, without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly waived by such
Subsidiary Borrower and the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company and (with respect to Section 3.15 only and to the extent provided therein) each
Subsidiary Borrower (if any) represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and its Designated Subsidiaries (a) is duly organized, validly
existing
and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite
power and authority to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c) above, to the
extent that failure to do so could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.02. Authorization; Enforceability. The execution, delivery and performance by each Loan Party of each Loan
Document to which
it is a party have been duly authorized by all necessary corporate or other organizational action.
Each Loan Document to which each Loan Party is a party has been duly executed and delivered by such
Loan Party and constitutes a legal, valid and binding obligation of such Loan Party, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other Laws affecting creditors rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Authorizations. No approval, consent, exemption, authorization, or other action by, or notice
to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement
or any other Loan Document, except such as have been obtained or made and are in full force and
effect.
SECTION 3.04. No Contravention. The execution, delivery and performance by each Loan Party of each Loan Document to which
such Loan Party is a party do not and will not (a) contravene the terms of
any of such Loan Partys Organization Documents; (b) conflict
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with or result in any breach or
contravention of, or the creation of any Lien under, or require any payment to be made under (i)
any Contractual Obligation to which such Loan Party is a party or affecting such Loan Party or the
properties of such Loan Party or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Loan Party or its property
is subject; or (c) violate any Law, except, in the case of clauses (b) and (c) above, to the extent
such violations or defaults, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change.
SECTION 3.05. Financial Statements; No Material Adverse Change.
(a) Financial Statements. The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, equity and cash flows (i) as of and for the
fiscal years ended December 31, 2008 and December 31, 2009, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of
the fiscal year ended September 30, 2010 certified by the Companys chief financial officer. Such
financial statements present fairly, in all material respects, the financial position and results
of operations and cash flows of the Company and its consolidated Subsidiaries as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments and the absence of
footnotes in the case of the statements referred to in clause (ii) above.
(b) No Material Adverse Change. Since December 31, 2009, there has been no event,
development or circumstance that has had or could reasonably be expected to result in a Material
Adverse Change (except for Disclosed Matters).
SECTION 3.06. Properties. Each of the Company and its Designated Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, subject only to Liens
permitted by Section 6.02 and, except for defects in title or leasehold interests that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.07. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. Except for Disclosed Matters and Disclosed Tax
Matters, there are no actions, suits, proceedings, claims, disputes or investigations pending or,
to the knowledge of the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Designated Subsidiaries or against
any of their properties or revenues that (i) either individually or in the aggregate, if determined
adversely, could reasonably be expected to result in a Material Adverse Change or (ii) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby.
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(b) Environmental Matters. Except for Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change, neither the Company nor any of its Designated Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with respect to any
Environmental Liability or (iv) knows of any conditions or circumstances that could reasonably be
expected to result in any Environmental Liability.
(c) Change in Disclosed Matters. Since November 5, 2010, there has been no change in
the status of Disclosed Matters and Disclosed Tax Matters that, individually or in the aggregate,
has resulted in, or could reasonably be expected to result in, a Material Adverse Change.
SECTION 3.08. Compliance with Laws. Each of the Company and its Designated Subsidiaries is in compliance with all Laws
(including any Environmental Laws) and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Change.
SECTION 3.09. No Default. Neither the Company nor any of its Designated Subsidiaries is in default under or with
respect to any Contractual Obligation that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Change. No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
SECTION 3.10. Investment Company Status. None of the Borrowers is and, after application of the proceeds of the Loans, will
be an
investment company as defined in, or subject to regulation under, the Investment Company Act of
1940.
SECTION 3.11. Taxes. Except for Disclosed Tax Matters, each of the Company and its Designated Subsidiaries has
timely filed or caused to be filed all Federal income tax returns and all other material tax
returns and reports required to have been filed and has paid or caused to be paid all taxes
required to have been paid by it, except (a) taxes for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Change.
SECTION 3.12. ERISA. (a) Each of the Company and its ERISA Affiliates is in compliance in all material respects
with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder as they relate to each Plan. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Company or any of its ERISA
Affiliates. The present value of all benefit liabilities of all underfunded Plans (determined
based on the projected benefit obligation with respect to such underfunded Plans based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the last annual valuation dates applicable thereto, exceed by more than $300,000,000 the fair
market value of the assets of all such underfunded Plans.
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(b) Each Foreign Pension Plan is in compliance in all material respects with all requirements
of Law applicable thereto and the respective requirements of the governing documents for such plan.
With respect to each Foreign Pension Plan, none of the Company, its Affiliates or any of their
respective directors, officers, employees or agents has engaged in a transaction that would subject
the Company or any Subsidiary, directly or indirectly, to a tax or civil penalty that could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
With respect to each Foreign Pension Plan, reserves have been established in the financial
statements furnished to the Lender in respect of any unfunded liabilities in accordance with
applicable Law and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The
aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be
expected to result in a Material Adverse Change. The present value of the aggregate accumulated
benefit liabilities of all such Foreign Pension Plans (based on those assumptions used to fund each
such Foreign Pension Plan) did not, as of the last annual valuation date applicable thereto, exceed
by more than $900,000,000 the fair market value of the assets held in trust under all such Foreign
Pension Plans.
SECTION 3.13. Disclosure. None of the reports, financial statements, certificates or other information furnished by
or on behalf of the Company or any of its Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of this Agreement and the other Loan Documents or delivered
hereunder or thereunder (as modified or supplemented by other information so furnished) contains
any material misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading as
of the date made; provided that, with respect to projected or pro forma financial
information, the Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time furnished (it being understood that such
projections and forecasts are subject to uncertainties and contingencies and no assurances can be
given that such projections or forecasts will be realized).
SECTION 3.14. Margin Regulations. No Loan Party is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying
or carrying Margin Stock, and no part of the proceeds of any Loan hereunder will be used to buy or
carry any Margin Stock. Following the application of the proceeds of each Borrowing,
not more than 25% of the value of the assets of any of the Loan Parties shall consist of
Margin Stock.
SECTION 3.15. Certain Representations by Subsidiary Borrowers. Each Subsidiary Borrower severally represents and warrants
that the representations and
warranties set forth in Sections 3.01, 3.02, 3.03, 3.04, 3.06, 3.07, 3.08, 3.09, 3.10, 3.11 and
3.14 with respect to itself and (if applicable) its Subsidiaries are true and correct in all
material respects (or, in the case of any such representations and warranties qualified as to
materiality, in all respects).
SECTION 3.16. Sanctioned Persons. None of the Company or any Subsidiary nor, to the knowledge of the Company, any director
or
officer of the Company or any Subsidiary is currently the target of any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and no
Borrower will directly or indirectly use the
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proceeds of the Loans or otherwise make available such
proceeds to any Person, for the purpose of financing the activities of any Person currently subject
to any U.S. sanctions administered by OFAC.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. This Agreement (other than Articles V and VI, except for such provisions thereof that shall
be effective from and after the Effective Date as expressly set forth in the introductory language
of Article V) shall become effective on the date (which shall not be later than December 31, 2010)
(the Effective Date) on which each of the following conditions shall be satisfied to the
satisfaction of the Administrative Agent (or waived in accordance with Section 9.02):
(a) Executed Counterparts of this Agreement. The Administrative Agent shall
have received from each of the Company, the Lenders and the Administrative Agent a
counterpart of this Agreement signed on behalf of such party (or written evidence
satisfactory to the Administrative Agent, which may include telecopy or electronic
transmission of a signed signature page to this Agreement, that such party has signed a
counterpart of this Agreement).
(b) Effectiveness of Other Credit Agreement. The Administrative Agent shall
have received evidence that the Other Credit Agreement shall have become effective to the
extent provided therein concurrently with the effectiveness of this Agreement.
(c) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition
(financial or otherwise) of the Company and its Subsidiaries taken as a whole (except
for Disclosed Matters).
(d) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Company,
the authorization of the Transactions and any other legal matters relating to the Company,
the Loan Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent.
(e) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Responsible Officer, confirming
satisfaction of each of the conditions set forth in this Section.
(f) Fees and Expenses. The Company shall have paid to the Administrative Agent
for the account of the respective person or persons entitled thereto all such fees and
expenses as it shall have agreed in writing to pay to the Agents, the Lenders and the Joint
Lead Arrangers in connection herewith (including (i) the upfront fees then payable
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by the Company to the Lenders and (ii) the reasonable fees and expenses of Milbank, Tweed,
Hadley & McCloy LLP, special New York counsel to the Administrative Agent) that are due and
payable on or prior to the Effective Date (and, with respect to such expenses, for which
invoices have been presented to the Company prior to the Effective Date).
(g) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent shall reasonably request.
The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
Notwithstanding anything herein to the contrary, the obligations of the Lenders to make Loans
hereunder shall not become effective unless and until the conditions specified in Section 4.02
shall be satisfied or waived in accordance therewith.
SECTION 4.02. Closing Date. The obligations of the Lenders to make Loans hereunder and the provisions of Articles V and
VI (to the extent such provisions shall not have become effective as of the Effective Date pursuant
to Section 4.01) shall become effective on the date (which shall not be later than March 31, 2011)
(the Closing Date) on which each of the following conditions shall be satisfied to the
satisfaction of the Administrative Agent (or waived in accordance with Section 9.02):
(a) Effective Date. The Effective Date shall have occurred.
(b) Repayment of Amounts under FRBNY Credit Agreement. The Administrative
Agent shall have received evidence that (i) the principal of and interest on
outstanding loans, and all accrued fees and all other amounts owing, under the FRBNY
Credit Agreement shall have been (or shall be simultaneously) paid in full, (ii) all
commitments to extend credit thereunder shall have been terminated and (iii) all Guarantees
in respect of, and all Liens securing, any such Indebtedness and any other obligations
thereunder shall have been released (except for any provisions of the FRBNY Credit Agreement
relating to indemnities and tax gross-up that expressly provide for the survival of
obligations thereunder, which shall continue in effect).
(c) AIG FP. The Administrative Agent and the Joint Lead Arrangers shall have
received satisfactory evidence that the aggregate contingent liquidity requirements of AIG
FP (as described in the chart entitled AIG-FP Contingent Liquidity Tracker as of 12/7/2010
distributed to the Lenders prior to the date hereof) shall not be greater than
$2,800,000,000 as of the Closing Date.
(d) Financial Statements. To the extent publicly available prior to the
Closing Date, the Company shall have furnished to the Administrative Agent and the Lenders
(or made available to them without charge and with notice by posting to the Companys
website) the Companys audited consolidated balance sheet and statements of income, equity
and cash flows as of and for the fiscal year ended December 31, 2010, reported on by
PricewaterhouseCoopers LLP, independent public accountants, in accordance with Section
5.01(a).
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(e) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole (except for Disclosed
Matters).
(f) Index Debt Ratings. The Index Debt Ratings (and the outlook thereof) from
each of S&P and Moodys as in effect on the Closing Date shall not be lower than the Index
Debt Ratings (and the outlook thereof) from such rating agencies as in effect on October 15,
2010 and as set forth on Schedule 4.02(f); provided, however, that the
condition in this Section 4.02(f) shall be satisfied if the Index Debt Rating in effect on
the Closing Date for either Moodys or S&P (but not both Moodys and S&P) shall fall not
more than one rating level.
(g) Bringdown of Representations and Warranties; and Absence of Default. (i)
The representations and warranties of the Company set forth in this Agreement and the other
Loan Documents shall be true and correct in all material respects (or, in the case of any
such representations and warranties qualified as to materiality, in all respects) on and as
of the Closing Date (or, if any such representation or warranty is expressly stated to have
been made as of a specified date, as of such specified date); and (ii) as of the Closing
Date, no Default shall have occurred and be continuing.
(h) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer, confirming
compliance with the conditions set forth in this Section and the Index Debt Ratings
(and the outlook thereof) as then in effect.
(i) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Loan
Parties, the authorization of the Transactions and any other legal matters relating to the
Loan Parties, the Loan Documents or the Transactions, all in form and substance satisfactory
to the Administrative Agent.
(j) Opinion of Counsel to Company. The Administrative Agent shall have
received one or more favorable written opinions (addressed to the Administrative Agent and
the Lenders and dated the Closing Date) of counsel to the Company (which may include the
general counsel or other internal counsel of the Company satisfactory to the Administrative
Agent), in form and substance reasonably satisfactory to the Agents (and the Company hereby
instructs such counsel to deliver such opinion(s)).
(k) Opinion of Special New York Counsel to Administrative Agent. The
Administrative Agent shall have received an opinion (addressed to the Administrative Agent
and the Lenders and dated the Closing Date) of Milbank, Tweed, Hadley & McCloy LLP, special
New York counsel to JPMCB as Administrative Agent, in form and substance satisfactory to the
Agents (and JPMCB hereby instructs such counsel to deliver such opinion).
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(l) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent may reasonably request.
(m) Fees and Expenses. The Company shall have paid to the Administrative Agent
on the Closing Date for the account of the respective person or persons entitled thereto all
such fees and expenses as it shall have agreed in writing to pay to the Agents, the Lenders
and the Joint Lead Arrangers in connection herewith (including (i) the upfront fees then
payable by the Company to the Lenders and (ii) the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to the Administrative Agent) that are
due and payable on or prior to the Closing Date (and, with respect to such expenses, for
which invoices have been presented to the Company prior to the Closing Date).
The Administrative Agent shall notify the Company and the Lenders of the Closing Date, and
such notice shall be conclusive and binding.
SECTION 4.03. Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject
to
the satisfaction of the following conditions (in addition to the satisfaction of the conditions
under Section 4.02 in the case of the initial Borrowing hereunder):
(a) the representations and warranties of the Company and each Subsidiary Borrower (if
any) set forth in this Agreement and the other Loan Documents (excluding,
except in the case of any Borrowing on the Closing Date, those representations and
warranties contained in Section 3.05(b) (but only as to clauses (a) and (b) of the
definition of Material Adverse Change) and Section 3.07(a) and (c)) shall be true and
correct in all material respects (or, in the case of any such representations and warranties
qualified as to materiality, in all respects) on and as of the date of such Borrowing (or,
if any such representation or warranty is expressly stated to have been made as of a
specified date, as of such specified date); and
(b) at the time of and immediately after giving effect to such Borrowing, no Default
shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by the Company on the
date thereof as to the matters specified in clauses (a) and (b) of the preceding sentence and (if
applicable) by the applicable Subsidiary Borrower of its representations and warranties set forth
in Section 3.15.
ARTICLE V
AFFIRMATIVE COVENANTS
From the Closing Date (except, in the case of Sections 5.01 and 5.02, from the Effective Date)
and until the Commitments have expired or been terminated and the principal of and interest on each
Loan and all fees payable hereunder shall have been paid in full, the Company covenants and agrees
with the Lenders that:
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SECTION 5.01. Financial Statements and Other Information. The Company will furnish to the Administrative Agent (which shall
promptly provide to each
Lender):
(a) within 90 days after the end of each fiscal year of the Company (or, if earlier,
within five Business Days after the Company shall have filed such financial statements with
the SEC), the audited consolidated balance sheets and related audited consolidated
statements of operations, stockholders equity and cash flows of the Company and its
Subsidiaries, in each case as of the end of and for such fiscal year, setting forth in each
case in comparative form the figures for (or, in the case of the balance sheet, as of the
end of) the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing (without a going concern or
like qualification or exception and without any qualification or exception as to the scope
of such audit) to the effect that such consolidated financial statements present fairly in
all material respects the financial condition and results of operations of the Company and
its Subsidiaries on a consolidated basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company (or, if earlier, within five Business Days after the Company
shall have filed such financial statements with the SEC), the unaudited consolidated balance
sheets and related unaudited statements of operations, stockholders
equity and cash flows of the Company and its Subsidiaries, in each case as of the end
of and for such fiscal quarter, setting forth in each case in comparative form the figures
for (or, in the case of the balance sheet, as of the end of) the corresponding period or
periods of the previous fiscal year, in each case certified by a Financial Officer as
presenting fairly in all material respects the financial condition and results of operations
of the Company and its Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer in form reasonably satisfactory to the
Administrative Agent (i) certifying that no Default has occurred or, if such a Default has
occurred, specifying the nature and extent thereof and any corrective action taken or
proposed to be taken with respect thereto, (ii) setting forth computations in reasonable
detail satisfactory to the Administrative Agent demonstrating compliance with the covenants
contained in Section 6.09 (and, if relevant, providing the information contemplated in the
parenthetical clause of such section) and (iii) specifying any changes to the list of
Designated Subsidiaries and Material Subsidiaries as of the last day of the fiscal period to
which such financial statements relate;
(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any Subsidiary with
the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or
any national securities exchange, or distributed to its shareholders generally, as the case
may be;
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(e) not later than January 31, 2011, a complete and correct list (in detail reasonably
satisfactory to the Administrative Agent) of Priority Indebtedness of the Company and each
Material Subsidiary (other than AIG FP) permitted under Section 6.01(b) (other than
Indebtedness excluded in the first parenthetical clause of the proviso to Section
6.01(b)(i)), in each case, existing as of the Effective Date and, with respect to any
particular such Indebtedness, in a principal amount of at least $25,000,000; and
(f) promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any Material Subsidiary, or compliance with the terms of
the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (d) (to the extent any
such documents are included in materials otherwise filed with the SEC) may be delivered
electronically by posting on an Internet website, and, if so delivered, shall be deemed to have
been furnished by the Company to the Administrative Agent (and by the Administrative Agent to the
Lenders) on the date (i) on which such materials are publicly available as posted on the Electronic
Data Gathering, Analysis and Retrieval system (EDGAR) or (ii) on which such documents are posted on
the Companys behalf on an Internet or intranet website, if any, to which each Lender and the
Administrative Agent have access without charge (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided
that: (A) the Company shall deliver paper copies of such documents to the Administrative
Agent or any Lender upon its request to the Company to deliver such paper copies until a written
request to cease delivering paper copies is given by the Administrative Agent or such Lender and
(B) the Company shall notify the Administrative Agent and each Lender (by telecopier or electronic
mail) of the posting of any such documents delivered pursuant to Section 5.01(a) or (b) and provide
to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of
such documents. The Administrative Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Company with any such request by a Lender for delivery,
and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies
of such documents.
SECTION 5.02. Notices of Material Events. The Company will furnish to the Administrative Agent (which shall promptly
provide to each
Lender) prompt written notice of the following :
(a) any occurrence of any Default;
(b) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $500,000,000;
(c) any change in the Companys Index Debt Ratings from S&P and Moodys, or the
placement by S&P or Moodys of the Company on a CreditWatch or WatchList or any similar
list, in each case with negative implications, or its cessation of, or its intent to cease,
rating the Companys debt; or
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(d) any development that has resulted in, or could reasonably be expected to result in,
a Material Adverse Change.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible
Officer setting forth the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each of its Designated Subsidiaries to, do
or cause to be
done all things necessary to preserve, renew and keep in full force and effect (a) its legal
existence and (b) the rights, licenses, permits, privileges and franchises material to the conduct
of its business, other than, in the case of clause (b), the loss of which could not reasonably be
expected to result in a Material Adverse Change; provided that the foregoing shall not
prohibit any merger, consolidation, liquidation or dissolution (i) permitted under Section 6.03 or
(ii) of any SPV that is a Designated Subsidiary.
SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its Designated Subsidiaries to, pay, before
the
same shall become delinquent or in default, its obligations, including Tax liabilities, that, if
not paid, could reasonably be expected to result in a Material Adverse Change, except where (a) the
validity or amount thereof is being contested in good faith by appropriate proceedings, (b) the
Company or such Designated Subsidiary has set aside on its books adequate reserves with respect
thereto in accordance with GAAP or SAP, as applicable, and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse Change;
provided that, for avoidance of doubt, solely with respect to Taxes, an obligation shall be
considered to be delinquent or in default for purposes of this Section only if there has first been
a notice and demand therefor (as defined in section 6303 of the Code and similar provisions of Law)
by a tax authority.
SECTION 5.05. Maintenance of Properties. The Company will, and will cause each of its Designated Subsidiaries to, keep and
maintain
all property material to the conduct of its business in good working order and condition (ordinary
wear and tear excepted) and make all necessary repairs thereto and renewals and replacements
thereof, except, in each case, to the extent that failure to do so could not be reasonably expected
to result in a Material Adverse Change.
SECTION 5.06. Books and Records. The Company will, and will cause each of its Designated Subsidiaries to, maintain proper
books of record and account, in which full, true and correct entries in conformity with GAAP or
SAP, as applicable, consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Company or such Designated Subsidiary, as the case may be.
SECTION 5.07. Inspection Rights. The Company will, and will cause each of its Designated Subsidiaries to, permit any
representatives designated by any Agent and/or any Joint Lead Arranger and (at any time a Default
exists) any representatives reasonably designated by any Lender, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books and other records
reasonably requested (other than information subject to confidentiality restrictions, insurance
records and customer-related information), and
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to discuss its affairs, finances and condition with
its officers and independent accountants, all at such reasonable times and as often as reasonably
requested. The Company shall pay the reasonable costs and expenses of any such visit or
inspection, but only if a Default exists at the time thereof or is discovered as a result thereof
(provided that the Company shall have no responsibility for any such costs and expenses
under any other circumstance).
SECTION 5.08. Compliance with Laws and Contractual Obligations. The Company will, and will cause each of its Designated
Subsidiaries to, comply with all
Laws and orders of any Governmental Authority applicable to it or its property (including
Environmental Laws) and all Contractual Obligations binding upon it or its property,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Change.
SECTION 5.09. Insurance. The Company will, and will cause each of its Designated Subsidiaries to, maintain with
financially sound and reputable insurance companies that are not Affiliates of the Company,
insurance with respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar business, of such types and
in such amounts (after giving effect to any self-insurance compatible with the following standards)
as are customarily carried under similar circumstances by such other Persons.
SECTION 5.10. Use of Proceeds. The proceeds of the Loans will be used for general corporate purposes of the Company and
its Subsidiaries (including, potentially, for commercial paper backstop) not in contravention of
any Law or any Loan Document.
ARTICLE VI
NEGATIVE COVENANTS
From the Closing Date and until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in full, the Company
covenants and agrees with the Lenders that:
SECTION 6.01. Priority Indebtedness. The Company will not, nor will it cause or permit any of its Material Subsidiaries to,
create, incur, assume or permit to exist any Priority Indebtedness, except:
(a) Indebtedness of any Subsidiary Borrower incurred under the Loan Documents, and
Indebtedness of any Material Subsidiary (if any) party as a borrower under the Other Credit
Agreement;
(b) (i) Priority Indebtedness of the Company and/or any Material Subsidiary existing
on the Effective Date (provided that the aggregate principal amount of such existing
Priority Indebtedness (other than Indebtedness (x) permitted under any of the other clauses
(other than clause (o)) of this Section or (y) covered under clause (e) or (so long as the
aggregate principal amount of Priority Indebtedness of the Company and its Material
Subsidiaries constituting Operating Indebtedness as of the Effective Date is not
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greater
than the aggregate principal amount of such Priority Indebtedness as of September 30, 2010)
clause (f) of the definition of Operating Indebtedness) shall not exceed $2,313,000,000);
(ii) if any Material Subsidiary shall become a Material Subsidiary after the Effective Date,
Priority Indebtedness of such Material Subsidiary existing on the date such Material
Subsidiary first becomes a Material Subsidiary; (iii) if any Material Subsidiary ceases to
be a Material Subsidiary and is subsequently
redesignated as a Material Subsidiary, Priority Indebtedness of such Material
Subsidiary existing as of the date of such redesignation (including, in the case of clauses
(i), (ii) and (iii) above, any Priority Indebtedness, including Guarantees, of any Material
Subsidiary owing to the Company or another Subsidiary); and (iv) any extensions, renewals,
exchanges or replacements of any such Indebtedness to the extent (A) the principal amount of
such Indebtedness is not increased (except by an amount equal to unpaid accrued interest and
premium thereon plus other reasonable fees and expenses incurred in connection with such
extension, renewals or replacement) and (B) such Indebtedness, if subordinated to the
Obligations, remains so subordinated on terms no less favorable to the Lenders;
(c) Indebtedness (including Guarantees) of any Material Subsidiary owing to the
Company or a Subsidiary of the Company incurred after the Effective Date; provided
that no such Indebtedness (other than such Indebtedness of AIG FP incurred in connection
with its winding down) shall be secured;
(d) obligations of any Material Subsidiary (i) to return collateral consisting of cash
or securities arising out of or in connection with the lending of the same or substantially
similar securities or (ii) to purchase securities arising out of or in connection with the
sale of the same or substantially similar securities, in each case in the ordinary course of
the business of such Material Subsidiary, in each case consistent with past practice;
(e) Indebtedness of the Company or any Material Subsidiary in respect of
securitizations of any of its assets (including notes or accounts receivable) entered into
in the ordinary course of business, which shall be secured by Liens solely on such
securitized assets (including (i) Guarantees issued in connection therewith and (ii)
repurchase obligations for breach of representations and indemnities);
(f) unsecured or secured Indebtedness of the Company or any Material Subsidiary in
respect of letters of credit issued on behalf of any Insurance Subsidiary for insurance
regulatory or reinsurance purposes;
(g) Indebtedness of a Person (other than the Company or any of its Affiliates) that is
consolidated on the balance sheet of the Company or any Material Subsidiary as a Variable
Interest Entity under Financial Accounting Standards Boards Interpretation No. 46R (or any
successor interpretations or amendments thereto and as affected by any subsequent relevant
pronouncements of the FASB or, if, and to the extent applicable, the SEC); provided
that the satisfaction of such Indebtedness is limited to the property of
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such Person (except
for customary exceptions for fraud, misapplication of funds, breach of representations and
environmental indemnities);
(h) Indebtedness of any Material Subsidiary secured by Liens on any of its real
property (including investments in real property) and certain personal property related
thereto; provided that (i) the recourse of the holder of such Indebtedness (whether
direct or indirect and whether contingent or otherwise) under the instrument creating such
Liens
or providing for such Indebtedness shall be limited to such real property and personal
property relating thereto; and (ii) such holder may not under the instrument creating such
Lien or providing for such Indebtedness collect by levy of execution or otherwise against
property of such Material Subsidiary (other than such real property and personal property
relating thereto directly securing such Indebtedness) if such Material Subsidiary fails to
pay such Indebtedness when due and such holder obtains a judgment with respect thereto,
except for recourse obligations that are customary in non-recourse real estate
transactions;
(i) unsecured letters of credit issued for the account of Chartis Inc. under the
Chartis Letter of Credit Agreement not exceeding an aggregate face amount of $2,000,000,000
(and any extensions, renewals, exchanges or replacements thereof to the extent the aggregate
face amount of such letters of credit thereunder shall not exceed $2,500,000,000);
(j) capital maintenance agreements, keep well agreements, support agreements and other
similar arrangements, whether or not constituting Indebtedness, provided by the Company or
any Material Subsidiary for the benefit of any Subsidiary of the Company;
(k) advances and extensions of credit to a Material Subsidiary by any Federal Home
Loan Bank;
(l) Indebtedness of International Lease Finance Corporation and its Subsidiaries;
provided that neither the Company nor any other Subsidiary shall provide any credit
support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness) with respect to such Indebtedness;
(m) Indebtedness of the Company or any Material Subsidiary in respect of letters of
credit, bankers acceptances and/or loan facilities required to support the capital
requirements of Ascot Corporate Name Ltd., as a member of Lloyds of London;
(n) Indebtedness incurred by any Material Subsidiary in connection with ordinary
course operation of the affordable housing business of SAFG Retirement Services, Inc. and
its Subsidiaries, including (i) secured or unsecured letters of credit, (ii) operating
deficit loans funded through a Material Subsidiary, (iii) purchasing, making, owning,
managing and selling loans (with customary representations and guarantees, either
individually or in pools, in whole or in structured interests) and related ordinary course
lender activities (including foreclosure) and (iv) syndicator activities, including acting
as a general partner and/or guarantor of investment funds; and
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(o) additional Priority Indebtedness of the Company and/or any of its Material
Subsidiaries in an aggregate principal amount not to exceed $500,000,000 at any one time
outstanding.
SECTION 6.02. Liens. The Company will not, nor will it cause or permit any of its Designated Subsidiaries to,
create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter
acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights
in respect of any thereof, except:
(a) (i) Liens of the Company existing on the Effective Date; and (ii) Liens of a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
Subsidiary and is subsequently redesignated as a Designated Subsidiary, Liens of such
Designated Subsidiary as of the date of such redesignation; provided that, in each
case, such Liens (A) shall secure only those obligations that they secure on the relevant
date and extensions, renewals, exchanges and replacements thereof permitted hereunder and
(B) shall not apply to any property of the Company or any Subsidiary other than the property
thereof covered by such Liens on the relevant date;
(b) any Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Designated Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition, (ii) such Lien does not apply to
any other property or assets of the Company or any Subsidiary and (iii) such Lien secures
only those obligations that it secures on the date of such acquisition;
(c) Liens for taxes, assessments and governmental charges not yet due or that are
being contested in compliance with Section 5.04;
(d) carriers, warehousemens, mechanics, materialmens, repairmens or other like
Liens arising in the ordinary course of business and securing obligations that are not due
and payable or that are being contested in compliance with Section 5.04;
(e) pledges and deposits made in the ordinary course of business in compliance with
workmens compensation, unemployment insurance and other social security Laws;
(f) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the business of the
Company or any Designated Subsidiary;
(h) Liens arising in the ordinary course of business on operating accounts (including
any related securities accounts) maintained by the Company or any Designated
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Subsidiary in
the ordinary course of business, including bankers Liens and rights of setoff arising in
connection therewith;
(i) judgment Liens securing judgments not constituting an Event of Default under
Article VII;
(j) Liens securing Swap Contracts entered into in the ordinary course of business and
not for speculative purposes and consistent with prudent business practice to hedge or
mitigate risks to which the Company or any Designated Subsidiary is exposed in the conduct
of their business or management of their liabilities;
(k) (i) Liens on (A) Equity Interests of Nan Shan Life Insurance Company, Ltd., AIG
Star Life Insurance Co. Ltd, AIG Edison Life Insurance Company, International Lease Finance
Corporation, Maiden Lane II LLC and Maiden Lane III LLC, (B) the proceeds thereof and
distributions thereon and (C) contracts with respect to the sale or other disposition of any
of the foregoing, in each case, in favor of AIA Aurora LLC and ALICO Holdings LLC (the
SPVs) securing intercompany loans by the SPVs to the Company and (ii) any other
Liens incurred pursuant to the Recapitalization Documents and the transactions contemplated
thereby;
(l) Liens arising out of deposits of cash or securities into collateral trusts or
reinsurance trusts with ceding companies, insurance regulators or as otherwise incurred in
the ordinary course of business of the Company and any Designated Subsidiary;
(m) Liens on assets acquired, constructed or improved by the Company or any Designated
Subsidiary; provided that (i) such Liens and the Indebtedness secured thereby are
incurred prior to or within 360 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such assets and (iii) such Liens shall not apply to
any other property or assets of such Person;
(n) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements constructed) by the Company or
any Designated Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such acquisition (or
construction), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost
or the fair market value of such real property, improvements or equipment at the time of
such acquisition (or construction) or (iv) such security interests do not apply to any other
property or assets of the Company or any Subsidiary;
(o) Liens arising in connection with secured Priority Indebtedness of the Company or
any Designated Subsidiary to the extent permitted under Section 6.01 (including the Liens
permitted by Section 6.01(e) and the posting of collateral in connection with the letters of
credit permitted by Section 6.01(n)); and
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(p) Liens not otherwise permitted by this Section arising in the ordinary course of
the business of the Company or any Designated Subsidiary that do not secure any
Indebtedness.
SECTION 6.03. Fundamental Changes. Except for the Potential Divestitures and the liquidation or dissolution of any SPV that
is
a Designated Subsidiary, the Company will not, nor will it cause or permit any of its Designated
Subsidiaries to, merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or liquidate or dissolve, except that, if at the time thereof
and immediately after giving effect thereto no Default has occurred and is continuing:
(i) any Designated Subsidiary may merge with or into the Company; provided
that the Company shall be the surviving entity;
(ii) any Subsidiary Borrower may merge with or into any other Subsidiary;
provided that such Subsidiary Borrower shall be the surviving entity; and
(iii) any other Designated Subsidiary may merge with or into any other Subsidiary;
provided that the surviving entity shall be deemed to be a Designated Subsidiary.
SECTION 6.04. Lines of Business. The Company will not, nor will it cause or permit any of its Designated Subsidiaries to,
engage
to any material extent in any business other than the businesses of the type conducted by the
Company and its Designated Subsidiaries on the date hereof and business activities reasonably
related or incidental thereto (including any new insurance and reinsurance businesses by any
Insurance Subsidiary in the ordinary course of its business).
SECTION 6.05. Dispositions. The Company will not, nor will it cause or permit any of its Designated Subsidiaries to,
convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, any part of its business or property, whether now owned or hereafter acquired
(including receivables and leasehold interests), except:
(a) Dispositions by the Company or any Designated Subsidiary in the ordinary course of
its business (including dividends and such Dispositions involving current assets or other
invested assets and sales of property or land in connection with the affordable housing
business referred in Section 6.01(n));
(b) Dispositions of equipment or other property which is obsolete or no longer used or
useful in the conduct of the business of the Company or such Designated Subsidiary;
(c) Dispositions from the Company to a Designated Subsidiary or any other Subsidiary,
and Dispositions from a Designated Subsidiary to the Company, another Designated Subsidiary
or any other Subsidiary;
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(d) discounts or forgiveness of accounts receivable in the ordinary course of business
or in connection with collection or compromise thereof and for which adequate reserves have
been established;
(e) (i) Potential Divestitures and (ii) Dispositions pursuant to the Recapitalization
Documents and the transactions contemplated thereby (including foreclosures in connection
with Liens permitted under Section 6.02(k));
(f) Dispositions of tax credits (or properties or ownership interests in properties,
or disposition of loans or interests in loans to properties, acquired to generate tax
credits);
(g) Dispositions by the Company or any Designated Subsidiary in connection with
securitizations permitted under Section 6.01(e); and
(h) other Dispositions; provided that (i) the aggregate value of assets sold,
leased, transferred or otherwise disposed after the Effective Date pursuant to this clause
(h) shall not exceed 15% of the consolidated total assets of the Company and its
Subsidiaries (based on the consolidated balance sheet of the Company for the fiscal quarter
ended September 30, 2010 and calculated after giving pro forma effect to the Potential
Divestitures (as if the same had been consummated as of such date)) and (ii) at the time of
any such Disposition, no Default shall exist or would result therefrom.
SECTION 6.06. Transactions with Affiliates. The Company will not, nor will it cause or permit any of its Designated
Subsidiaries to,
sell or transfer any property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates, except that: (a) the
Company or any Designated Subsidiary may engage in any such transactions on terms and conditions
not less favorable to the Company or such Designated Subsidiary than could be obtained on an
arms-length basis from unrelated third parties; and (b) the Company or any Designated Subsidiary
may engage in any such transactions with any Subsidiary (but not involving any Affiliate that is
not a Subsidiary).
SECTION 6.07. Certain Restrictive Agreements. The Company will not, nor will it cause or permit any of its Designated
Subsidiaries to,
directly or indirectly, enter into any agreement or other arrangement (other than this Agreement
and any other Loan Document) that (a) prohibits, restricts or imposes any condition upon the
ability of the Company or any such Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets (including Equity Interests of such Persons direct Subsidiaries) or (b)
requires the grant of a Lien to secure an obligation of the Company or any such Designated
Subsidiary if a Lien is granted to secure another obligation of the Company or any such Designated
Subsidiary; except:
(i) restrictions and conditions imposed by Law, any Loan Document or any
Recapitalization Document;
(ii) restrictions on the Company existing on the Effective Date, restrictions on a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
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Subsidiary and is subsequently redesignated as a Designated Subsidiary, restrictions on
such Designated Subsidiary as of the date of such redesignation;
(iii) customary restrictions and conditions contained in any agreements relating to
the sale of property pending such sale; provided that such restrictions and
conditions apply only to the property to be sold and such sale is permitted hereunder;
(iv) restrictions or conditions imposed by any agreement relating to (A) secured
Indebtedness or secured Swap Contracts permitted by this Agreement if such restrictions or
conditions apply only to the property securing such Indebtedness or such secured Swap
Contracts, as the case may be, or (B) any Indebtedness of the Company issued after the
Effective Date in the form of senior unsecured notes so long as such restrictions and
conditions are no more onerous on the Company and the Designated Subsidiaries than the
restrictions and conditions contained in the Companys supplemental indenture with respect
to its 3.650% Notes due 2014; and
(v) customary provisions in leases and other contracts restricting the assignment
thereof.
SECTION 6.08. Fiscal Year. The Company will not change the last day of its fiscal year from December 31 of each year,
or the last days of the first three fiscal quarters in each of its fiscal years from March 31, June
30 and September 30 of each year, respectively.
SECTION 6.09. Financial Covenants.
(a) Consolidated Net Worth. The Company will not permit Consolidated Net Worth at
any time to be less than $59,600,000,000 (minus the net loss (if any) recognized by the
Company in connection with the sale by the Company or any Subsidiary of the Equity Interests or
assets of International Lease Finance Corporation or Nan Shan Life Insurance Company, Limited, in
each case, in the amount disclosed by the Company in its consolidated financial statements for the
fiscal period in which such sale is consummated delivered pursuant to Section 5.01 (or otherwise
disclosed by the Company in a filing with the SEC delivered pursuant to Section 5.01) and certified
by a Financial Officer in the certificate delivered pursuant to Section 5.01(c) for such fiscal
period).
(b) Consolidated Total Debt to Consolidated Total Capitalization. The Company will
not permit Consolidated Total Debt at any time to exceed 35% of Consolidated Total Capitalization.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events (Events of Default) shall occur:
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(a) the Company or any Subsidiary Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration or otherwise;
(b) the Company or any Subsidiary Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in clause (a) of this
Article) due under any Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Company
or any other Loan Party in or in connection with any Loan Document or any amendment or
modification thereof, or any representation, warranty, statement or information contained in
any report, certificate, financial statement or other instrument furnished in connection
with or pursuant to any Loan Document or any amendment or modification hereof or thereof,
shall prove to have been incorrect in any material respect when made, deemed made or
furnished;
(d) (i) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in Sections 5.02(a), 5.02(d), 5.03(a) and 5.10 and in Article VI; (ii)
any Loan Party shall fail to observe or perform any covenant, condition or agreement
contained in Sections 5.01(e), 5.02(b) and 5.02(c) and such failure shall continue
unremedied for a period of three or more Business Days; or (iii) any Loan Party shall fail
to observe or perform any covenant, condition or agreement contained in Section 5.07 and
such failure shall continue unremedied for a period of five or more Business Days after
notice thereof from the Administrative Agent to the Company (given at the request of any
Lender);
(e) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document (other than those specified in clause (a), (b) or
(d) of this Article) and such failure shall continue unremedied for a period of 30 or more
days after notice thereof from the Administrative Agent to the Company (given at the request
of any Lender);
(f) (i) the Company or any of its Subsidiaries shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (beyond any applicable grace period
expressly set forth in the governing documents); or (ii) any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after taking into account any applicable grace period) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or their behalf to
cause such Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that
this subclause (ii) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such Indebtedness;
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(g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Company or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or for a
substantial part of the assets of the Company or any Material Subsidiary, and, in any such
case, such proceeding or petition shall continue undismissed for a period of 60 or more days
or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (g) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of the assets of the Company or any Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against the Company and/or its Subsidiaries
or any combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the Company or
any Subsidiary to enforce any such judgment, and such judgment and/or judgments either is or
are, as applicable, for (i) the payment of money in an aggregate amount in excess of
$500,000,000 (or its equivalent in any other currency) or (ii) injunctive relief and could
reasonably be expected to result in a Material Adverse Change;
(j) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Change;
(k) any of the Loan Documents shall cease for any reason to be in full force and effect
(other than in accordance with its terms), or any Loan Party shall deny in writing that it
has any further liability thereunder; or (without limiting the foregoing) at any time a
Subsidiary Borrower shall be party to this Agreement, the guarantee of the Company under
Article X shall cease to be in full force and effect (other than in accordance with its
terms), or the Company shall deny in writing that it has any liability under such guarantee;
(l) there shall have occurred a Change in Control; or
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(m) an Event of Default shall occur or be continuing under the Other Credit
Agreement;
then, and in every such event (other than an event with respect to Company described in clause (g)
or (h) 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
Company, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Company and the Subsidiary Borrowers
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 Loan Parties, anything contained
herein to the contrary notwithstanding; and in case of any event with respect to the Company
described in clause (g) or (h) of this Article, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest thereon and all fees
and other obligations of the Company and the Subsidiary Borrowers 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 Loan Parties, anything contained herein to the contrary
notwithstanding.
ARTICLE VIII
ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent
hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by
the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrowers 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 and in the other Loan Documents. 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 or by the other Loan Documents that
the Administrative Agent is required to exercise in writing by the Required Lenders and (c) except
as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to
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disclose, any information relating to any Borrower or any of its Subsidiaries that is
communicated to or obtained by the Person 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 in the absence of its own gross
negligence or wilful 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
Borrowers 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 or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or therein, 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
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 any
Borrower), 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 facilities 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
Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so appointed by the
Required Lenders 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, in each case with a combined
capital and surplus of at least $500,000,000. 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 (or
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retired) Administrative Agent and the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the Administrative Agents resignation hereunder, the provisions of this Article and Section
9.03 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 other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any
Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan shall then
be due and payable as herein expressed or by declaration or otherwise and irrespective of whether
the Administrative Agent shall have made any demand on any Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise: (a) to file and prove a claim for the
whole amount of the principal and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders and the Administrative Agent (including any
claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the
Administrative Agent and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under Sections 2.04 and 9.03) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to the Administrative Agent and, in the event that the Administrative
Agent shall consent to the making of such payments directly to the Lenders, to pay to the
Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and
advances of the Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under Sections 2.04 and 9.03. Nothing contained herein shall be deemed to
authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any
Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
Notwithstanding anything to the contrary contained herein, the Joint Lead Arrangers, the
Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall
not have any duties or liabilities under this Agreement, except in their capacity, if any, as
Lenders.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) of this Section), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, to
the applicable address or telecopier number for the applicable Person in Schedule 9.01.
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
(c) Change of Address, Etc. 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.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by any Loan Party therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default
at the time.
(b) 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
Loan Parties and the Required Lenders or by the Loan Parties and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall:
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(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 directly and
adversely affected thereby (provided that only the consent of the Required Lenders
shall be necessary to amend the definition of Default Rate or to waive any obligation of
the applicable Borrower to pay interest at the Default Rate);
(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 directly and adversely affected thereby;
(iv) change Section 2.15(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender;
(v) change any of the provisions of this Section or the definition of the term
Required Lenders or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; or
(vi) release the Company from its guarantee obligations under Article X, without the
written consent of each Lender;
and provided further that no such agreement shall (A) amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder or amend, modify or waive any
provision of Section 2.18 without the prior written consent of the Administrative Agent or (B)
amend, modify or otherwise affect the rights or duties of any other Agent hereunder without the
prior written consent of such other Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company agrees to pay or reimburse (i) all reasonable
out-of-pocket expenses incurred by the Agents, the Joint Lead Arrangers and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not
the transactions contemplated hereby or thereby shall be consummated); and (ii) all
out-of-pocket expenses incurred by any Agent or any Lender, including the fees, charges and
disbursements of any counsel for any Agent or any Lender, in connection with the enforcement or
protection of its rights in connection with this Agreement and the other Loan Documents, including
its rights under this Section, or in connection with the Loans made hereunder, including in
connection with any workout, restructuring or negotiations in respect thereof, including in each
case the fees, charges and disbursements of counsel, accountants, financial
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advisors and other
experts engaged by the Agents or the Required Lenders (including the allocated fees of in-house
counsel). This Section shall not apply with respect to Taxes other than any Taxes that represent
losses or damages arising from any non-Tax claim.
(b) Indemnification by Company. The Company agrees to indemnify each Agent, each
Joint Lead Arranger 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 any agreement or instrument contemplated hereby, the performance by the parties hereto
of their respective obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or the use or intended use of the proceeds
therefrom or (iii) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is
initiated by a third party, the Company or any of its Subsidiaries); provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or wilful misconduct of
such Indemnitee. This Section shall not apply with respect to Taxes other than any Taxes that
represent losses or damages arising from any non-Tax claim.
(c) Reimbursement by Lenders. To the extent that the Company fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent such Lenders Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted against such Agent in
its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable Law,
the Loan Parties shall not assert, and hereby waive, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the Transactions, any Loan or the use or the intended
use of the proceeds thereof.
(e) Use of Information. No Person indemnified under paragraph (b) of this Section
shall be liable for any damages arising from the use by others of any information or other
materials obtained through Intralinks or other similar information transmission systems in
connection with this Agreement other than for direct or actual damages resulting from the gross
negligence or wilful misconduct of such indemnified Person as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(f) Payments. All amounts due under this Section shall be payable promptly after
written demand therefor.
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SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. 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 (i) no Loan Party may 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 any Loan Party without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. 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 and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents,
the Lenders and the Joint Lead Arrangers) any legal or equitable right, remedy or claim under or by
reason of this Agreement or the other Loan Documents.
(b) Assignments by Lenders. (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and the Loans at the
time owing to it) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Company; provided that no consent of the Company shall be required for
an assignment to (I) a Lender, an Affiliate of a Lender or an Approved Fund or (II) if an
Event of Default has occurred and is continuing, any other assignee; and provided,
further, that the Company shall be deemed to have consented to any such assignment
requiring its consent under this clause (A) unless it shall object thereto by written notice
to the Administrative Agent within 15 Business Days after having received written notice
thereof; and
(B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment to a Lender.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment, the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than
$5,000,000 unless each of the Company (except if an Event of Default has occurred and
is continuing) and the Administrative Agent otherwise consent (which consent shall not be
unreasonably withheld);
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500;
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(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Company and its Related Parties or their respective securities) will
be made available and who may receive such information in accordance with the assignees
compliance procedures and applicable Laws, including Federal and state securities Laws; and
(E) no such assignment shall be made to (I) the Company or any of the Companys
Affiliates or Subsidiaries, (II) any Defaulting Lender or any of its Subsidiaries, or any
Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this subclause (II) or (III) a natural person or a corporation, limited
liability company, trust or other entity owned, operated or established for the primary
benefit of a natural person and/or family members or relatives of such person.
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lenders 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, 2.14 and 9.03). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register by Administrative Agent. The Administrative Agent,
acting for this purpose as a non-fiduciary agent of the Loan Parties, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the Register). The
entries in the Register shall be conclusive absent manifest error, and the Loan Parties, the
Administrative Agent and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by any Loan Party and any Lender, at any reasonable time and from time to time upon
reasonable prior notice.
(v) Effectiveness of Assignments. Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignees completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information
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contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.04(b), 2.15(e) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption and record
the information therein in the Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Participations. Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities (a
Participant) in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged;
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations; and (C) the Company, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lenders rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. The Company agrees that each
Participant shall be entitled to the benefits of Sections 2.12, 2.13 and 2.14 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this
Section; provided that such Participant (A) shall be subject to the requirements and
limitations therein, including the requirements under Section 2.14(f) (it being understood that the
documentation required under Section 2.14(f) shall be delivered to the participating Lender); (B)
agrees to be subject to the provisions of Sections 2.15 and 2.16 as if it were an assignee under
paragraph (b) of this Section; and (C) shall not be entitled to receive any greater payment under
Section 2.12 or 2.14, with respect to any participation, than its participating Lender would have
been entitled to receive, except to the extent such entitlement to receive a greater payment
results from a Change in Law that occurs after the Participant acquired the applicable
participation. To the extent permitted by Law, each Participant also shall be entitled to the
benefits of Section 9.09 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.15(d) as though it were a Lender. Each Lender that sells a participation
shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a
register on which it enters the name and
address of each Participant and the principal amounts (and stated interest) of each
Participants interest in the Loans or other obligations under this Agreement (the Participant
Register); provided that no Lender shall have any obligation to disclose all or any
portion of the Participant Register to any Person (including the identity of any Participant or any
information relating to a Participants interest in any Commitment, Loan, promissory note or other
obligations under any Loan Document) except if additional payments under Sections 2.12 and 2.14 are
requested with respect to such Participant and except to the extent that such disclosure is
necessary to establish that such Commitment, Loan, promissory note or other obligation is in
registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries
in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat
each person whose
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name is recorded in the Participant Register as the owner of such participation
for all purposes of this Agreement notwithstanding any notice to the contrary.
(d) Certain Pledges. 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 9.05. Survival. All representations and warranties made by the Loan Parties herein and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement or any other Loan
Document shall be considered to have been relied upon by the other parties hereto and shall survive
the execution and delivery of this Agreement and the making by the Lenders of any Loans, regardless
of any investigation made by or on behalf of any Lender and notwithstanding that the Administrative
Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement or any other Loan Document is outstanding and unpaid and so long as
the Commitments have not expired or been terminated. The provisions of Sections 2.12, 2.13, 2.14
and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, any assignment of rights by, or replacement
of, a Lender, the expiration or termination of the Commitments, the repayment, satisfaction or
discharge of all Obligations under the Loan Documents, the invalidity or unenforceability of any
term or provision of any Loan Document or any investigation made by or on behalf of any Lender.
SECTION 9.06. 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, the other Loan Documents and any
separate letter agreements with respect to fees payable to the Administrative Agent constitute the
entire contract between and 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. This Agreement (except as provided in Section 4.01)
shall become effective as of the Effective Date 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 to this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. If any provision of this Agreement or the other Loan Documents is held to be illegal,
invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions
of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b)
the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the illegal, invalid or
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unenforceable provisions. The invalidity of a
provision in a particular jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
SECTION 9.08. Payments Set Aside. To the extent that any payment by or on behalf of any Loan Party is made to the
Administrative Agent or any Lender, or the Administrative Agent or any Lender exercises its right
of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant
to any settlement entered into by the Administrative Agent or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any proceeding under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such payment had not been
made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the
Administrative Agent upon demand its applicable share (without duplication) of any amount so
recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such
demand to the date such payment is made at a rate per annum equal to the Federal Funds Effective
Rate from time to time in effect. The obligations of the Lenders under clause (b) of the preceding
sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.
SECTION 9.09. Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and its
Affiliates are authorized at any time and from time to time, to the fullest extent permitted by
Law, to set off and apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender and its Affiliates
to or for the credit or the account of any Loan Party against any of and all the obligations of
such Loan Party hereunder and under the other Loan Documents, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such obligations may be
unmatured. The rights of each Lender under this Section are in addition to other rights and
remedies (including other rights of setoff) which such Lender may have.
Each Lender agrees to notify the Company and the Administrative Agent promptly after any such
setoff and application, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Submission to Jurisdiction. Each Loan Party hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive 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 the other Loan Documents, 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
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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 the Administrative
Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement
against any Loan Party or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Loan Party hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Loan Documents in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
Law.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.12. Headings. Article and Section headings and the Table of Contents used herein are for convenience of
reference only, are not part of this Agreement and shall not affect the construction of, or be
taken into consideration in interpreting, this Agreement.
SECTION 9.13. 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 Related Parties (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 or
quasi-regulatory authority (such as the NAIC), (c) to the extent required by any 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 under any other Loan Document or
any suit, action or proceeding relating
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to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement in writing containing
provisions substantially the same as those of this paragraph and for the benefit of the Loan
Parties, 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 Company or (h)
to the extent such Information (i) becomes publicly available other than as a result of a breach of
this paragraph or (ii) becomes available to the Administrative Agent or any Lender on a
nonconfidential basis from a source other than the Company. In the event that the Administrative
Agent or any Lender becomes legally compelled to disclose any confidential Information pursuant to
clause (c) of this Section, the Administrative Agent or such Lender shall, to the extent permitted
by Law, give prompt written notice of that fact to the Company prior to the disclosure, and in the
event that the Company shall advise the Administrative Agent or such Lender that it will seek an
appropriate remedy to prevent or limit such disclosure, the Administrative Agent or such Lender, as
applicable, shall cooperate reasonably (at the expense of the Company) with the Company in seeking
such remedy. For the purposes of this Section, Information means all information
received from the Company relating to the Company, its Subsidiaries or their 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 Company; provided that, in the case of
information received from the Company after the Effective Date, such information is clearly
identified at or prior to 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.
EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS SECTION) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
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SECTION 9.14. USA PATRIOT Act. Each Lender hereby notifies the Loan Parties that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender may be
required to obtain, verify and record information that identifies each Loan Party, 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 said Act.
SECTION 9.15. No Advisory or Fiduciary Relationships. In connection with all aspects of each transaction contemplated
hereby (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document),
each Loan Party acknowledges and agrees that: (a) (i) the arranging and other services regarding
this Agreement provided by the Administrative Agent, the Lenders and the Joint Lead Arrangers are
arms-length commercial transactions between the Company and its Affiliates, on the one hand, and
the Administrative Agent, the Lenders and the Joint Lead Arrangers, on the other hand, (ii) each
Loan Party has consulted its own legal, accounting, regulatory and tax advisors to the extent it
has deemed appropriate, and (iii) each Loan Party is capable of evaluating, and understands and
accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other
Loan Documents; (b) (i) the Administrative Agent, the Lenders and the Joint Lead Arrangers each is
and has been acting solely as a principal and, except as expressly agreed in writing by the
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary
for the Company or any of its Affiliates, or any other Person and (ii) none of the Administrative
Agent, the Lenders and the Joint Lead Arrangers has any obligation to the Company or any of its
Affiliates with respect to the transactions
contemplated hereby except those obligations expressly set forth herein and in the other Loan
Documents; and (c) the Administrative Agent, the Lenders and the Joint Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Company and its Affiliates, and none of the Administrative Agent, the
Lenders and Joint Lead Arrangers has any obligation to disclose any of such interests to the
Company or its Affiliates. To the fullest extent permitted by Law, each Loan Party hereby waives
and releases any claims that it may have against the Administrative Agent, the Lenders and the
Joint Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty in
connection with any aspect of any transaction contemplated hereby.
ARTICLE X
GUARANTEE
SECTION 10.01. Guarantee. The Company hereby guarantees to each Lender and the Administrative Agent and their
respective successors and assigns the prompt payment in full when due (whether at stated maturity,
by acceleration or otherwise) of the Obligations of each Subsidiary Borrower strictly in accordance
with the terms thereof (such obligations being herein collectively called the Guaranteed
Obligations). The Company hereby further agrees that if any Subsidiary Borrower shall fail to
pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the
Guaranteed Obligations of such Subsidiary Borrower, the Company will promptly pay the same, without
any demand or notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of such Guaranteed Obligations, the
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same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such
extension or renewal.
SECTION 10.02. Obligations Unconditional. The obligations of the Company under Section 10.01 are absolute, irrevocable
and
unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of
the obligations of the Subsidiary Borrowers under this Agreement or any other agreement or
instrument referred to herein, or any substitution, release or exchange of any other guarantee of
or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable Law, irrespective of any Law of any jurisdiction or any other event affecting any term
of any Guaranteed Obligation or any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor, it being the intent of this
Article that the obligations of the Company hereunder shall be absolute and unconditional under any
and all circumstances. Without limiting the generality of the foregoing, it is agreed that the
occurrence of any one or more of the following shall not alter or impair the liability of the
Company hereunder, which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to the Company, the time for any
performance of or compliance with any of the Guaranteed Obligations shall be extended, or
such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other
agreement or instrument referred to herein shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of
the Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any
right under this Agreement or any other agreement or instrument referred to herein shall be
waived or any other guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt with.
The Company hereby expressly waives diligence, presentment, demand of payment, protest and all
notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any
right, power or remedy or proceed against any Subsidiary Borrower under this Agreement or any other
agreement or instrument referred to herein, or against any other Person under any other guarantee
of, or security for, any of the Guaranteed Obligations.
SECTION 10.03. Reinstatement. The obligations of the Company under this Article shall be automatically reinstated if and
to the extent that for any reason any payment by or on behalf of any Subsidiary Borrower in respect
of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization
or otherwise, and each Guarantor agrees that it will indemnify the Administrative Agent and each
Lender on demand for all reasonable costs and expenses (including fees of counsel) incurred by the
Administrative Agent or such Lender in connection with such rescission or restoration, including
any such costs and expenses incurred in defending against any claim alleging that such payment
constituted a
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preference, fraudulent transfer or similar payment under any bankruptcy, insolvency
or similar Law.
SECTION 10.04. Subrogation. The Company hereby agrees that, until the payment and satisfaction in full of all
Guaranteed Obligations and the expiration and termination of the Commitments of the Lenders under
this Agreement, it shall not exercise any right or remedy arising by reason of any performance by
it of its guarantee in Section 10.01, whether by subrogation or otherwise, against any Subsidiary
Borrower or any other guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations.
SECTION 10.05. Remedies. The Company agrees that, as between the Company and the Lenders, the obligations of any
Subsidiary Borrower under this Agreement may be declared to be forthwith due and payable as
provided in Article VII (and shall be deemed to have become automatically due and payable in the
circumstances provided in Article VII) for purposes of Section 10.01 notwithstanding any stay,
injunction or other prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against such Subsidiary Borrower and that, in the event of such
declaration (or such obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by such
Subsidiary Borrower) shall forthwith become due and payable by the Company for purposes of
Section 10.01.
SECTION 10.06. Continuing Guarantee. The guarantee in this Article is a continuing guarantee, and shall apply to all
Guaranteed
Obligations whenever arising.
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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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AMERICAN INTERNATIONAL GROUP, INC.
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By |
/s/ Robert A. Gender
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Name: |
Robert A. Gender |
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Title: |
Vice President and Treasurer |
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U.S. Federal Tax Identification
No.: 13-2592361
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SUBSIDIARY
BORROWERS
[NONE AS OF THE EFFECTIVE DATE]
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LENDERS
JPMORGAN CHASE BANK, N.A.,
individually and as Administrative Agent
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By |
/s/ Michael E. Murray
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Name: |
Michael E. Murray |
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Title: |
Executive Director |
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BANK OF AMERICA, N.A.,
as a Lender and a Syndication Agent
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By |
/s/ Jason Cassity
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Name: |
Jason Cassity |
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Title: |
Vice President |
|
|
364-Day Credit Agreement
- 83 -
|
|
|
|
|
|
CITIBANK, N.A.,
as a Lender and a Syndication Agent
|
|
|
By |
/s/ Maureen Maroney
|
|
|
|
Name: |
Maureen Maroney |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 84 -
|
|
|
|
|
|
BARCLAYS BANK PLC
|
|
|
By |
/s/ Kevin Cullen
|
|
|
|
Name: |
Kevin Cullen |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 85 -
|
|
|
|
|
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
|
|
|
By |
/s/ Jay Chall
|
|
|
|
Name: |
Jay Chall |
|
|
|
Title: |
Director |
|
|
|
|
|
|
By |
/s/ Kathrin Marti
|
|
|
|
Name: |
Kathrin Marti |
|
|
|
Title: |
Assistant Vice President |
|
|
364-Day Credit Agreement
- 86 -
|
|
|
|
|
|
DEUTSCHE BANK AG NEW YORK BRANCH
|
|
|
By |
/s/ Robert Chesley
|
|
|
|
Name: |
Robert Chesley |
|
|
|
Title: |
Director |
|
|
|
|
|
|
By |
/s/ John S. McGill
|
|
|
|
Name: |
John S. McGill |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 87 -
|
|
|
|
|
|
GOLDMAN SACHS BANK USA
|
|
|
By |
/s/ Mark Walton
|
|
|
|
Name: |
Mark Walton |
|
|
|
Title: |
Authorized Signatory |
|
|
364-Day Credit Agreement
- 88 -
|
|
|
|
|
|
MORGAN STANLEY SENIOR FUNDING, INC.
|
|
|
By |
/s/ Ryan Vetsch
|
|
|
|
Name: |
Ryan Vetsch |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 89 -
|
|
|
|
|
|
NOMURA INTERNATIONAL PLC
|
|
|
By |
/s/ Morven Jones
|
|
|
|
Name: |
Morven Jones |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 90 -
|
|
|
|
|
|
THE ROYAL BANK OF SCOTLAND PLC
|
|
|
By |
/s/ Charles Greer
|
|
|
|
Name: |
Charles Greer |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 91 -
|
|
|
|
|
|
UBS LOAN FINANCE LLC
|
|
|
By |
/s/ Irja R. Otsa
|
|
|
|
Name: |
Irja R. Otsa |
|
|
|
Title: |
Associate Director |
|
|
|
|
|
|
By |
/s/ Mary E. Evans
|
|
|
|
Name: |
Mary E. Evans |
|
|
|
Title: |
Associate Director |
|
|
364-Day Credit Agreement
- 92 -
|
|
|
|
|
|
WELLS FARGO BANK, N.A.
|
|
|
By |
/s/ Robert Meyer
|
|
|
|
Name: |
Robert Meyer |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 93 -
|
|
|
|
|
|
INDUSTRIAL AND COMMERCIAL BANK OF
CHINA LIMITED, NEW YORK BRANCH
|
|
|
By |
/s/ Bin Wu
|
|
|
|
Name: |
Bin Wu |
|
|
|
Title: |
General Manager |
|
|
364-Day Credit Agreement
- 94 -
|
|
|
|
|
|
BNP PARIBAS
|
|
|
By |
/s/ Joseph M. Malley
|
|
|
|
Name: |
Joseph M. Malley |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Riad Jafarov
|
|
|
|
Name: |
Riad Jafarov |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 95 -
|
|
|
|
|
|
ROYAL BANK OF CANADA
|
|
|
By |
/s/ Tim Stephens
|
|
|
|
Name: |
Tim Stephens |
|
|
|
Title: |
Authorized Signatory |
|
|
364-Day Credit Agreement
- 96 -
|
|
|
|
|
|
STANDARD CHARTERED BANK
|
|
|
By |
/s/ Robert Gilbert
|
|
|
|
Name: |
Robert Gilbert |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Robert K. Reddington
|
|
|
|
Name: |
Robert K. Reddington |
|
|
|
Title: |
Credit Documentation Manager |
|
|
364-Day Credit Agreement
- 97 -
|
|
|
|
|
|
SUMITOMO MITSUI BANKING CORPORATION
|
|
|
By |
/s/ William M. Ginn
|
|
|
|
Name: |
William M. Ginn |
|
|
|
Title: |
Executive Officer |
|
|
364-Day Credit Agreement
- 98 -
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON
|
|
|
By |
/s/ Michael Pensari
|
|
|
|
Name: |
Michael Pensari |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 99 -
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA
|
|
|
By |
/s/ David Mahmood
|
|
|
|
Name: |
David Mahmood |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 100 -
|
|
|
|
|
|
U.S. BANK N.A.
|
|
|
By |
/s/
Inna Kotsubey |
|
|
|
Name: |
Inna Kotsubey |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 101 -
|
|
|
|
|
|
DBS BANK LTD., LOS ANGELES AGENCY
|
|
|
By |
/s/ James McWalters
|
|
|
|
Name: |
James McWalters |
|
|
|
Title: |
General Manager |
|
|
364-Day Credit Agreement
- 102 -
|
|
|
|
|
|
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
|
|
|
By |
/s/ Robert Grillo
|
|
|
|
Name: |
Robert Grillo |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 103 -
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK
|
|
|
By |
/s/ Charles Kornberger
|
|
|
|
Name: |
Charles Kornberger |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Frank Tatulli
|
|
|
|
Name: |
Frank Tatulli |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 104 -
|
|
|
|
|
|
ING BANK N.V.
|
|
|
By |
/s/ C. van den Berge
|
|
|
|
Name: |
C. van den Berge |
|
|
|
Title: |
Director |
|
|
|
|
|
|
By |
/s/ R. Liebesny
|
|
|
|
Name: |
R. Liebesny |
|
|
|
Title: |
Manager |
|
|
364-Day Credit Agreement
- 105 -
|
|
|
|
|
|
MIZUHO CORPORATE BANK, LTD.
|
|
|
By |
/s/ Toru Inoue
|
|
|
|
Name: |
Toru Inoue |
|
|
|
Title: |
Deputy General Manager |
|
|
364-Day Credit Agreement
- 106 -
|
|
|
|
|
|
NATIONAL AUSTRALIA BANK LIMITED
|
|
|
By |
/s/ Helen Hsu
|
|
|
|
Name: |
Helen Hsu |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 107 -
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION
|
|
|
By |
/s/ Gustavus A. Bahr
|
|
|
|
Name: |
Gustavus A. Bahr |
|
|
|
Title: |
Senior Vice President |
|
|
364-Day Credit Agreement
- 108 -
|
|
|
|
|
|
SOCIETE GENERALE
|
|
|
By |
/s/ William Aishton
|
|
|
|
Name: |
William Aishton |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 109 -
|
|
|
|
|
|
STATE STREET BANK AND TRUST COMPANY
|
|
|
By |
/s/ Deirdre M. Holland
|
|
|
|
Name: |
Deirdre M. Holland |
|
|
|
Title: |
Vice President |
|
|
364-Day Credit Agreement
- 110 -
|
|
|
|
|
|
UNICREDIT BANK AG, NEW YORK BRANCH
|
|
|
By |
/s/ Jorge Wilmer
|
|
|
|
Name: |
Jorge Wilmer |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Michael A. Imperiale
|
|
|
|
Name: |
Michael A. Imperiale |
|
|
|
Title: |
Director |
|
|
364-Day Credit Agreement
- 111 -
|
|
|
|
|
|
MIHI LLC
|
|
|
By |
/s/ Andy Stock
|
|
|
|
Name: |
Andy Stock |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Andrew Underwood
|
|
|
|
Name: |
Andrew Underwood |
|
|
|
Title: |
Managing Director |
|
|
364-Day Credit Agreement
- 112 -
|
|
|
|
|
|
NATIXIS, NEW YORK BRANCH
|
|
|
By |
/s/ Ray Meyer
|
|
|
|
Name: |
Ray Meyer |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Paul Goncharoff
|
|
|
|
Name: |
Paul Goncharoff |
|
|
|
Title: |
Associate |
|
|
364-Day Credit Agreement
- 113 -
|
|
|
|
|
|
THE GOVERNOR & COMPANY OF THE BANK OF IRELAND
|
|
|
By |
/s/ Padraig Rushe
|
|
|
|
Name: |
Padraig Rushe |
|
|
|
Title: |
Authorised Signatory |
|
|
|
|
|
|
By |
/s/ Orla Jones
|
|
|
|
Name: |
Orla Jones |
|
|
|
Title: |
Authorised Signatory |
|
|
364-Day Credit Agreement
SCHEDULE 2.01
Commitments
|
|
|
|
|
Name of Lender |
|
Commitment ($) |
JPMORGAN CHASE BANK, N.A. |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
BANK OF AMERICA, N.A. |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
CITIBANK, N.A. |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
BARCLAYS BANK PLC |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
DEUTSCHE BANK AG NEW YORK BRANCH |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
GOLDMAN SACHS BANK USA |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
MORGAN STANLEY SENIOR FUNDING, INC. |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
NOMURA INTERNATIONAL PLC |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
THE ROYAL BANK OF SCOTLAND PLC |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
UBS LOAN FINANCE LLC |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
WELLS FARGO BANK, N.A. |
|
$ |
66,000,000.00 |
|
|
|
|
|
|
INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH |
|
$ |
48,000,000.00 |
|
|
|
|
|
|
BNP PARIBAS |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
ROYAL BANK OF CANADA |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
STANDARD CHARTERED BANK |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
SUMITOMO MITSUI BANKING CORPORATION |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
U.S. BANK N.A. |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
DBS BANK LTD., LOS ANGELES AGENCY |
|
$ |
35,000,000.00 |
|
Schedule 2.01 to 364-Day Credit Agreement
- 2 -
|
|
|
|
|
Name of Lender |
|
Commitment ($) |
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
ING BANK N.V. |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
MIZUHO CORPORATE BANK, LTD. |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
NATIONAL AUSTRALIA BANK LIMITED |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
SOCIETE GENERALE |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
STATE STREET BANK AND TRUST COMPANY |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
UNICREDIT BANK AG, NEW YORK BRANCH |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
MIHI LLC |
|
$ |
25,000,000.00 |
|
|
|
|
|
|
NATIXIS, NEW YORK BRANCH |
|
$ |
25,000,000.00 |
|
|
|
|
|
|
THE GOVERNOR & COMPANY OF THE BANK OF IRELAND |
|
$ |
25,000,000.00 |
|
|
|
|
|
|
|
TOTAL |
|
$ |
1,500,000,000.00 |
|
Schedule 2.01 to 364-Day Credit Agreement
SCHEDULE 2.01A
Existing Operating Indebtedness
|
|
|
|
|
Type (all AIG borrowings supported by assets) |
|
Amount as of September 30, 2010 (in millions) |
MIP matched notes and bonds payable |
|
$ |
12,052 |
|
Series AIGFP matched notes and bonds payable |
|
$ |
4,037 |
|
Notes and bonds payable, at fair value |
|
$ |
3,386 |
|
Loans and mortgages payable, at fair value |
|
$ |
697 |
|
|
TOTAL |
|
$ |
20,172 |
|
Schedule 2.01A to 364-Day Credit Agreement
SCHEDULE 4.02(f)
Index Debt Ratings
|
|
|
|
|
|
|
S&P |
|
Moodys |
Index Debt Rating |
|
Status |
|
Index Debt Rating |
|
Status |
A-
|
|
Negative
|
|
A3
|
|
Negative |
Schedule 4.02(f) to 364-Day Credit Agreement
SCHEDULE 9.01
Notice Information
I. Company:
American International Group, Inc.
180 Maiden Lane
New York, New York 10038
Attention: Robert A. Gender, Vice President and Treasurer
Fax No.: 212-770-7991
Telephone No.: 212-770-8212
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Erik Lindauer
Fax No.: 212-558-3588
Telephone No.: 212-558-3548
II. Administrative Agent:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Harshal H Patel
Fax No.: 713-750-2223
Telephone No.: 713-750-2268
with a copy to:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Christina M Masroor
Fax No.: 713-750-2223
Telephone No.: 713-750-7940
III. Lenders
Initially, as provided in the relevant Lenders Administrative Questionnaire
Schedule 9.01 to 364-Day Credit Agreement
EXHIBIT A
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor identified in item 1
below (the Assignor) and the Assignee identified in item 2 below (the
Assignee). Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (as amended, the Credit Agreement),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors rights
and obligations in its capacity as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and percentage interest
identified below of all of such outstanding rights and obligations of the Assignor under the
respective facilities identified below (including without limitation any letters of credit,
guarantees and swingline loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under
or in connection with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations
sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the
Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein
collectively as the Assigned Interest). Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
|
|
|
|
|
1.
|
|
Assignor:
|
|
______________________ |
|
|
|
|
|
2.
|
|
Assignee:
|
|
____________________ |
|
|
|
|
[and is an [Affiliate][Approved Fund] of [identify Lender]]1 |
|
|
|
|
|
3.
|
|
Borrower(s):
|
|
American International Group, Inc. and (if applicable) certain subsidiaries thereof |
|
|
|
|
|
4. |
|
Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
Assignment and Assumption
- 2-
|
|
|
|
|
5.
|
|
Credit Agreement:
|
|
The $1,500,000,000 364-Day Credit Agreement dated as of December 23, 2010 among American
International Group, Inc., the Subsidiary Borrowers party thereto, the Lenders party thereto and
JPMorgan Chase Bank, N.A., as Administrative Agent. |
|
|
|
|
|
6. |
|
Assigned Interest: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate Amount |
|
|
|
|
|
Percentage |
|
|
|
|
of Commitment/ |
|
Amount of |
|
Assigned of |
|
|
|
|
Loans for all |
|
Commitment/ |
|
Commitment/ |
Assignor |
|
Assignee |
|
Lenders |
|
Loans Assigned |
|
Loans |
|
|
|
|
$
|
|
|
$ |
|
|
|
% |
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
% |
|
|
|
|
|
|
$ |
|
|
|
$ |
|
|
|
% |
|
Effective Date: _________, 201_ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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ASSIGNEE
[NAME OF ASSIGNEE]
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Assignment and Assumption
- 3 -
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[Consented to and]2 Accepted: |
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JPMORGAN CHASE BANK, N.A., as Administrative Agent |
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By |
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Title:
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[Consented to:]3 |
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AMERICAN INTERNATIONAL GROUP, INC. |
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Title:
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To be added only if the consent of the
Administrative Agent is required by the terms of the Credit Agreement. |
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To be added only if the consent of the
Company is required by the terms of the Credit Agreement. |
Assignment and Assumption
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements, if any, under the Credit Agreement including
Section 9.04(b) thereof (subject to such consents, if any, as may be required under such Section
9.04(b)), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) 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 Assignment and
Assumption and to purchase the Assigned Interest and (vii) if it is a Non-U.S. Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
Assignment and Assumption
- 2 -
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Assignment and Assumption
EXHIBIT B-1
[FORM OF SUBSIDIARY BORROWER DESIGNATION]
SUBSIDIARY BORROWER DESIGNATION
_______, 201_
To JPMorgan Chase Bank, N.A.,
as Administrative Agent
[Address]
Attention:
Re: Subsidiary Borrower Designation
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement (the Credit Agreement) dated as of
December 23, 2010 among American International Group Inc. (the Company), the Subsidiary
Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent (the Administrative Agent). Capitalized terms used but not defined herein shall
have the respective meanings assigned to such terms in the Credit Agreement.
The Company hereby designates [_____] (the Designated Subsidiary), a wholly-owned
Domestic Subsidiary of the Company and a [corporation/limited liability company] duly organized
under the laws of State of [____], as a Subsidiary Borrower in accordance with Section 2.19(a) of
the Credit Agreement until such designation is terminated in accordance with Section 2.19(c)
thereof.
The Designated Subsidiary hereby accepts the above designation and hereby expressly and
unconditionally accepts the obligations of a Subsidiary Borrower under the Credit Agreement,
adheres to the Credit Agreement and agrees and confirms that, upon your execution and return to the
Company of the enclosed copy of this Subsidiary Borrower Designation, it shall be a Subsidiary
Borrower for purposes of the Credit Agreement and agrees to be bound by and perform and comply with
the terms and provisions of the Credit Agreement applicable to it as if it had originally executed
the Credit Agreement as a Subsidiary Borrower.
The Company hereby confirms and agrees that, after giving effect to this Subsidiary Borrower
Designation, the Guarantee of the Company contained in Article X of the Credit Agreement shall
apply to all of the obligations of the Designated Subsidiary under the Credit Agreement.
The Designated Subsidiary hereby represents and warrants:
1. Each of the representations and warranties set forth in Section 3.15 of the Credit
Agreement is true and correct in all material respects (or, in the case of any such
representations and warranties qualified as to materiality, in all respects), in each case
as it relates to the Designated Subsidiary and its subsidiaries;
Subsidiary Borrower Designation
- 2 -
2. The Designated Subsidiarys addresses for notices, other communications and service
of process provided for in the Credit Agreement shall be given in the manner, and with the
effect, specified in Section 9.01 of the Credit Agreement to it at its Address for Notices
specified on the signature pages below; and
3. The Designated Subsidiary shall deliver to the Administrative Agent the documents
and certificates set forth in, or required by, Section 2.19(b) of the Credit Agreement.
The designation of the Designated Subsidiary as a Subsidiary Borrower under the Credit
Agreement shall become effective as of the date (the Designation Effective Date) on which
the Administrative Agent accepts this Subsidiary Borrower Designation as provided on the signature
pages below. As of the Designation Effective Date, the Designated Subsidiary shall be entitled to
the rights, and subject to the obligations, of a Subsidiary Borrower. Except as expressly herein
provided, the Credit Agreement shall remain unchanged and in full force and effect.
The Designated Subsidiary hereby agrees that this Subsidiary Borrower Designation, the Credit
Agreement and the promissory notes (if any) executed and delivered by the Designated Subsidiary
pursuant to the Credit Agreement shall be governed by, and construed in accordance with, the law of
the State of New York. The Designated Subsidiary hereby submits to the exclusive jurisdiction of
any New York State court or Federal court of the United States of America, in each case sitting in
New York County, and any appellate court from any thereof, for the purposes of all legal
proceedings arising out of or relating to this Subsidiary Borrower Designation, the Credit
Agreement or the transactions contemplated thereby. THE DESIGNATED SUBSIDIARY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUBSIDIARY BORROWER DESIGNATION, THE CREDIT AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED THEREBY.
This Subsidiary Borrower Designation may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement.
Subsidiary Borrower Designation
- 3 -
IN WITNESS WHEREOF, the Company and the Designated Subsidiary have caused this Subsidiary
Borrower Designation to be duly executed and delivered as of the day and year first above written.
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AMERICAN INTERNATIONAL GROUP, INC. |
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Name:
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DESIGNATED
SUBSIDIARY |
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[NAME OF SUBSIDIARY], |
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a
[corporation/limited liability company] |
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By: |
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Name:
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Title: |
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Address for Notices |
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Attention:
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Fax No:
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Telephone No.: |
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With a copy to: |
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American International Group, Inc. |
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[ ] |
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[ ] |
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Attention: [ ] |
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Fax No.: [ ] |
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Telephone No.: [ ] |
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Subsidiary Borrower Designation
- 4 -
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ACCEPTED: |
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent |
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By |
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Name:
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Subsidiary Borrower Designation
EXHIBIT B-2
[FORM OF SUBSIDIARY BORROWER TERMINATION NOTICE]
SUBSIDIARY BORROWER TERMINATION NOTICE
________, 201_
To: JPMorgan Chase Bank, N.A.,
as Administrative Agent
[Address]
Attention: [______]
Re: Subsidiary Borrower Termination Notice
Ladies and Gentlemen:
Reference is made to the 364-Day Credit Agreement (the Credit Agreement) dated as of
December 23, 2010 among American International Group, Inc. (the Company), the Subsidiary
Borrowers party thereto, the Lenders party thereto and JPMorgan Chase Bank, N.A. as the
Administrative Agent. Terms used herein having the meanings assigned to them in the Credit
Agreement.
The Company hereby gives notice pursuant to Section 2.19(c) of the Credit Agreement that,
effective as of the date hereof, [_______] (the Subsidiary Borrower) is terminated as a
Subsidiary Borrower under the Credit Agreement and all commitments by the Lenders to make Loans to
the Subsidiary Borrower under the Credit Agreement are hereby terminated.
Pursuant to Section 2.19(c) of the Credit Agreement, the Company hereby certifies that there
are no outstanding Loans made to the Subsidiary Borrower, any unpaid interest thereon or any other
amounts owing by the Subsidiary Borrower under the Credit Agreement and the other Loan Documents.
All obligations of the Subsidiary Borrower arising in respect of any period in which the
Subsidiary Borrower was, or on account of any action or inaction taken by the Subsidiary Borrower
as, a Subsidiary Borrower under the Credit Agreement (and the guarantee of the Company of such
obligations pursuant to Article X of the Credit Agreement) shall survive the termination effected
by this notice.
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AMERICAN INTERNATIONAL GROUP, INC. |
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Subsidiary Borrower Designation
EXHIBIT C
[Form of Promissory Note]
PROMISSORY NOTE
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$[_________]
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[________], 201[_] |
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New York, New York |
FOR VALUE RECEIVED, [NAME OF BORROWER], a [_______] [corporation/limited liability company]
(the Borrower), hereby promises to pay to [NAME OF LENDER] (the Lender), at
such of the offices of JPMorgan Chase Bank, N.A. as shall be notified to the Borrower from time to
time, the principal sum of [DOLLAR AMOUNT] dollars (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under the Credit
Agreement), in lawful money of the United States of America and in immediately available funds, on
the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the
unpaid principal amount of each such Loan, at such office, in like money and funds, for the period
commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum
and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each
Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof,
shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by
the Lender on the schedule attached hereto or any continuation thereof, provided that the
failure of the Lender to make any such recordation or endorsement shall not affect the obligations
of the Borrower to make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Loans made by the Lender to the Borrower.
This Note evidences Loans made by the Lender to the Borrower under the 364-Day Credit
Agreement dated as of December 23, 2010 (as modified and supplemented and in effect from time to
time, the Credit Agreement) among the Company, the Subsidiary Borrowers party thereto,
the lenders party thereto (including the Lender) and JPMorgan Chase Bank, N.A., as Administrative
Agent. Terms used but not defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and conditions specified
therein.
Except as permitted by Section 9.04 of the Credit Agreement, this Note may not be assigned by
the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law of the State of New
York.
Promissory Note
- 2 -
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[NAME OF BORROWER] |
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Promissory Note
SCHEDULE OF LOANS
This Note evidences Loans made, continued or converted under the within-described Credit
Agreement to the Borrower, on the dates, in the principal amounts, of the Types, bearing interest
at the rates and having Interest Periods (if applicable) of the durations set forth below, subject
to the continuations, conversions and payments and prepayments of principal set forth below:
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Amount Paid, |
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Principal |
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Promissory Note
EXHIBIT D
FORMS OF U.S. TAX CERTIFICATES
[See Attached Forms]
U.S. Tax Certificate
EXHIBIT D-1
[FORM OF U.S. TAX CERTIFICATE]
(FOR NON-U.S. LENDERS THAT ARE NOT PARTNERSHIPS
FOR U.S. FEDERAL INCOME TAX PURPOSES)
Reference is hereby made to the 364-Day Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any
Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is
not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent
shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a
controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the
Code and (v) the interest payments in question are not effectively connected with the undersigneds
conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Company with a certificate of
its non-U.S. person status on United States Internal Revenue Service Form W-8BEN. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
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[NAME OF LENDER] |
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By: |
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Name:
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Title: |
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Date: ________, 201_
U.S. Tax Certificate
EXHIBIT D-2
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Lenders That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the 364-Day Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing
such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are
the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii)
with respect to the extension of credit pursuant to the Credit Agreement, neither the undersigned
nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered
into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of
the Code, (iv) none of its partners/members is a ten percent shareholder of the Company within the
meaning of Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled
foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code, and
(vi) the interest payments in question are not effectively connected with the undersigneds or its
partners/members conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Company with United States
Internal Revenue Service Form W-8IMY accompanied by a United States Internal Revenue Service Form
W-8BEN from each of its partners/members claiming the portfolio interest exemption. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
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[NAME OF LENDER] |
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By: |
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Name:
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Title: |
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Date: ________, 201_
U.S. Tax Certificate
EXHIBIT D-3
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the 364-Day Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record and beneficial owner of the participation in respect of
which it is providing this certificate, (ii) it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the
meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Company as described in Section 881(c)(3)(C) of the Code, and (v) the interest
payments in question are not effectively connected with the undersigneds conduct of a U.S. trade
or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on United States Internal Revenue Service Form W-8BEN. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
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[NAME OF PARTICIPANT] |
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By: |
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Name:
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Title: |
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Date: _______, 201_
U.S. Tax Certificate
EXHIBIT D-4
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the 364-Day Credit Agreement dated as of December 23, 2010 (as
modified and supplemented and in effect from time to time, the Credit Agreement) among
American International Group, Inc. (the Company), the Subsidiary Borrowers party thereto,
the lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the
Administrative Agent). Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them in the Credit Agreement.
Pursuant to the provisions of Section 2.14 of the Credit Agreement, the undersigned hereby
certifies that (i) it is the sole record owner of the participation in respect of which it is
providing this certificate, (ii) its partners/members are the sole beneficial owners of such
participation, (iii) with respect such participation, neither the undersigned nor any of its
partners/members is a bank extending credit pursuant to a loan agreement entered into in the
ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its partners/members is a ten percent shareholder of the Company within the meaning of
Section 871(h)(3)(B) of the Code, (v) none of its partners/members is a controlled foreign
corporation related to the Company as described in Section 881(c)(3)(C) of the Code, and (vi) the
interest payments in question are not effectively connected with the undersigneds or its
partners/members conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with United States Internal Revenue
Service Form W-8IMY accompanied by a United States Internal Revenue Service Form W-8BEN from each
of its partners/members claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
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[NAME OF PARTICIPANT] |
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By: |
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Name:
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Title: |
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Date: _______, 201_
U.S. Tax Certificate
exv10w3
EXHIBIT 10.3
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
dated as of
December 23, 2010
among
CHARTIS INC.,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
Each Several L/C Agent Party Hereto
J.P. MORGAN SECURITIES LLC,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers and Joint Bookrunners
BANK OF AMERICA, N.A.
and
CITIBANK, N.A.,
as Co-Syndication Agents
DEUTSCHE BANK SECURITIES INC.
and
STANDARD CHARTERED BANK,
as Co-Documentation Agents
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.01. Defined Terms |
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1 |
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SECTION 1.02. Terms Generally |
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19 |
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SECTION 1.03. Accounting Terms and Determinations |
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19 |
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ARTICLE II THE CREDITS |
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20 |
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SECTION 2.01. Letters of Credit |
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20 |
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SECTION 2.02. Termination and Reduction of Commitments |
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32 |
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SECTION 2.03. Fees; Other Charges; Computations of Fees and Interest |
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33 |
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SECTION 2.04. Increased Costs |
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34 |
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SECTION 2.05. Taxes |
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35 |
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SECTION 2.06. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
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39 |
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SECTION 2.07. Mitigation Obligations; Replacement of Lenders |
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40 |
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SECTION 2.08. Increase in Commitments |
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41 |
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SECTION 2.09. Non-NAIC Approved Banks |
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42 |
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SECTION 2.10. Defaulting Lenders |
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43 |
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ARTICLE III REPRESENTATIONS AND WARRANTIES |
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45 |
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SECTION 3.01. Organization; Powers |
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45 |
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SECTION 3.02. Authorization; Enforceability |
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45 |
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SECTION 3.03. Governmental Authorizations |
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45 |
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SECTION 3.04. No Contravention |
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45 |
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SECTION 3.05. Financial Statements; No Material Adverse Change |
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45 |
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SECTION 3.06. Properties |
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46 |
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SECTION 3.07. Litigation and Environmental Matters |
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46 |
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SECTION 3.08. Compliance with Laws |
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46 |
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SECTION 3.09. No Default |
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47 |
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SECTION 3.10. Investment Company Status |
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47 |
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SECTION 3.11. Taxes |
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47 |
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SECTION 3.12. ERISA |
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47 |
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SECTION 3.13. Disclosure |
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48 |
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SECTION 3.14. Margin Regulations |
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48 |
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SECTION 3.15. Sanctioned Persons |
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48 |
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ARTICLE IV CONDITIONS |
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48 |
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SECTION 4.01. Effective Date |
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48 |
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SECTION 4.02. Closing Date |
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49 |
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SECTION 4.03. Each Credit Event |
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51 |
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ARTICLE V AFFIRMATIVE COVENANTS |
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52 |
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SECTION 5.01. Financial Statements and Other Information |
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52 |
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SECTION 5.02. Notices of Material Events |
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54 |
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SECTION 5.03. Existence; Conduct of Business |
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54 |
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SECTION 5.04. Payment of Obligations |
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54 |
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SECTION 5.05. Maintenance of Properties |
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54 |
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SECTION 5.06. Books and Records |
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55 |
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SECTION 5.07. Inspection Rights |
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55 |
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SECTION 5.08. Compliance with Laws and Contractual Obligations |
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55 |
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SECTION 5.09. Insurance |
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55 |
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SECTION 5.10. Use of Letters of Credit |
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55 |
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ARTICLE VI NEGATIVE COVENANTS |
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55 |
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SECTION 6.01. Indebtedness |
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56 |
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SECTION 6.02. Liens |
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57 |
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SECTION 6.03. Fundamental Changes |
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59 |
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SECTION 6.04. Lines of Business |
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59 |
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SECTION 6.05. Dispositions |
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60 |
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SECTION 6.06. Transactions with Affiliates |
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60 |
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SECTION 6.07. Certain Restrictive Agreements |
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61 |
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SECTION 6.08. Fiscal Year |
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61 |
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SECTION 6.09. Financial Covenants |
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61 |
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ARTICLE VII EVENTS OF DEFAULT |
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61 |
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ARTICLE VIII AGENTS |
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64 |
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ARTICLE IX MISCELLANEOUS |
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67 |
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SECTION 9.01. Notices |
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67 |
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SECTION 9.02. Waivers; Amendments |
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67 |
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SECTION 9.03. Expenses; Indemnity; Damage Waiver |
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68 |
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SECTION 9.04. Successors and Assigns |
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70 |
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SECTION 9.05. Survival |
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73 |
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SECTION 9.06. Counterparts; Integration; Effectiveness |
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74 |
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SECTION 9.07. Severability |
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74 |
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SECTION 9.08. Payments Set Aside |
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74 |
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SECTION 9.09. Right of Setoff |
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74 |
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SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process |
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75 |
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SECTION 9.11. WAIVER OF JURY TRIAL |
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75 |
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SECTION 9.12. Headings |
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76 |
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SECTION 9.13. Confidentiality |
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76 |
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SECTION 9.14. USA PATRIOT Act |
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77 |
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SECTION 9.15. No Advisory or Fiduciary Relationships |
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77 |
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SCHEDULES |
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SCHEDULE 2.01
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Commitments |
SCHEDULE 4.02(e)
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Financial Strength Ratings |
SCHEDULE 9.01
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Notice Information |
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EXHIBITS |
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EXHIBIT A
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Form of Assignment and Assumption |
EXHIBIT B
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Forms of U.S. Tax Certificates |
- iii -
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT dated as of December 23, 2010 among CHARTIS INC.,
the LENDERS party hereto, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and each SEVERAL L/C
AGENT party hereto.
The Company has requested that the Lenders provide a revolving credit facility for the
issuance of letters of credit, and the Lenders are willing to do so on the terms and conditions set
forth herein. The parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
Administrative Agent means JPMCB, in its capacity as administrative agent for the
Lenders hereunder.
Administrative Agents Office means the Administrative Agents address as set forth
on Schedule 9.01, or such other address as the Administrative Agent may from time to time notify
the Company and the Lenders.
Administrative Questionnaire means an Administrative Questionnaire in a form
supplied by the Administrative Agent.
Affected Lender means a Lender that (a) is not obligated to issue a particular
Several Letter of Credit because of one or more of the events or circumstances described in
Sections 2.01(a)(iii)(A) or (B) and (b) has elected not to issue such Several Letter of Credit as a
result of one or more of such events or circumstances.
Affiliate means, when used 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; provided that neither Federal Reserve Bank
of New York nor United States Department of the Treasury shall be deemed to be an Affiliate of the
Company for purposes of this Agreement.
Agents means each of the Administrative Agent, the Syndication Agents and the
Several L/C Agents.
Agreement Value means, for each Swap Contract, on any date of determination, the
maximum aggregate amount (giving effect to any netting agreements and netting amounts arising out
of intercompany Swap Contracts) that the Company or any Subsidiary would be required to pay if such
Swap Contract were terminated on such date.
AIG means American International Group, Inc., a Delaware corporation.
Alternate Base Rate means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on
Credit Agreement
- 2 -
such day
plus 0.50%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
Annual Statement means the annual statutory financial statement of any Insurance
Subsidiary required to be filed with the insurance commissioner (or similar authority) of its
jurisdiction of organization, which statement shall be in the form required by such Insurance
Subsidiarys jurisdiction of incorporation or, if no specific form is so required, in the form of
financial statements permitted by such insurance commissioner (or such similar authority) to be
used for filing annual statutory financial statements and shall contain the type of information
permitted or required by such insurance commissioner (or such similar authority) to be disclosed
therein, together with all exhibits or schedules filed therewith.
Applicable Percentage means, with respect to any Lender, the percentage of the total
Commitments represented by such Lenders Commitment. If the Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments. The Applicable Percentage of a Lender may be adjusted in
accordance with the provisions of this Agreement, including as a result of a Commitment Increase
under Section 2.08 and the provisions regarding Defaulting Lenders.
Applicable Rate means, for any day, a rate per annum equal to: (a) with respect to
ticking fees or commitment fees pursuant to Section 2.03(a) or (b), 0.20%; and (b) with respect to
any Letter of Credit fees pursuant to Section 2.03(c), 1.50%.
Approved Fund means any Person (other than a natural person) that is engaged in
making, purchasing, holding or investing in bank loans and similar extensions of credit in the
ordinary course of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Assignment and Assumption means an assignment and assumption entered into by a
Lender as assignor and an assignee (with the consent of each Person whose consent is required by
Section 9.04(b)), and accepted by the Administrative Agent, in the form of Exhibit A or any other
form approved by the Administrative Agent.
Assuming Lender has the meaning assigned to such term in Section 2.08.
Availability Period means the period from and including the Closing Date to but
excluding the earlier of the Commitment Termination Date and the date of termination of the
Commitments.
Bankruptcy Event means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any such proceeding or appointment, provided that a
Bankruptcy
Letter of Credit Agreement and Reimbursement Agreement
- 3 -
Event shall not result solely by virtue of any ownership interest, or the acquisition of
any ownership interest, in such Person by a Governmental Authority or instrumentality thereof,
provided, further, that such ownership interest does not result in or provide such
Person with immunity from the jurisdiction of courts within the United States or from the
enforcement of judgments or writs of attachment on its assets or permit such Person (or such
Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts
or agreements made by such Person.
Board means the Board of Governors of the Federal Reserve System of the United
States.
Business Day means any day that is not a Saturday, Sunday or other day on which
banks in New York City are authorized or required by Law to remain closed.
Capital Lease Obligations of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
Cash Collateral means, with respect to any Letter of Credit, deposit account
balances maintained with the Administrative Agent, denominated in Dollars and pledged, as
collateral, to the Administrative Agent for the benefit of the Lenders in an amount equal to the
Outstanding Amount of L/C Obligations.
Cash Collateralize has the meaning specified in Section 2.01(g). Derivatives of
Cash Collateralize shall have corresponding meanings.
Catastrophe Bond means any note, bond or other instrument of Indebtedness or any
Swap Contract or other similar agreement which has a catastrophe, weather or other risk feature
linked to payments thereunder.
A Change in Control shall be deemed to have occurred if (a) any person or group
(within the meaning of Rule 13d-5 of the Securities Exchange Act of 1934 as in effect on the date
hereof), other than Federal Reserve Bank of New York and United States Department of the Treasury
(the Permitted Investors), shall own, directly or indirectly, beneficially or of record,
shares representing more than 35% of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of AIG; (b) a majority of the seats (other than vacant seats) on the
board of directors of AIG shall at any time be occupied by persons who were not (i) nominated by
the board of directors of AIG, (ii) appointed by directors so nominated or (iii) elected with the
favorable vote of the Permitted Investors; or (c) any change in control (or similar event, however
denominated) with respect to AIG shall occur under and as defined in any indenture or agreement in
respect of Material AIG Indebtedness, which event enables or permits the holder or holders of such
Material AIG Indebtedness or any trustee or agent on its or their
behalf to cause such Material AIG Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity.
Letter of Credit Agreement and Reimbursement Agreement
- 4 -
Change in Law means (a) the adoption of any Law after the date of this Agreement,
(b) any change in any Law or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of
Section 2.04(b), by any lending office of such Lender or by such Lenders holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement; provided that,
notwithstanding anything herein to the contrary, the Dodd-Frank Wall Street Reform and Consumer
Protection Act and all requests, rules, guidelines, requirements and directives thereunder issued
in connection therewith or in implementation thereof shall be deemed to be a Change in Law,
regardless of the date enacted, adopted, issued or implemented.
Closing Date has the meaning assigned to such term in Section 4.02.
Code means the Internal Revenue Code of 1986, as amended.
Combined Balance Sheet means the combined balance sheet of the managed businesses of
the Company and its Subsidiaries.
Combined Financial Statements means the combined balance sheet and statements of
income (loss), comprehensive income (loss) and changes in equity and cash flows of the managed
businesses of the Company and its Subsidiaries.
Combined Net Worth means, at any date, the combined total equity of the managed
businesses of the Company and its Subsidiaries; provided that there shall be excluded from
Combined Net Worth (a) accumulated other comprehensive income (or loss) and (b) all
noncontrolling interests (as determined in accordance with the Statement of Financial Accounting
Standards No. 160, entitled Noncontrolling Interests in Consolidated Financial Statements).
Combined Statutory Surplus means, at any date, the sum of the statutory surplus and
capital of each of the Companys Insurance Subsidiaries in accordance with SAP, determined on a
combined basis for all such Insurance Companies at such date.
Commitment means, with respect to each Lender, the commitment of such Lender to
issue Several Letters of Credit (and/or to purchase participations therein to the extent provided
herein), in an aggregate amount at any one time outstanding not to exceed the sum of (a) the amount
set forth opposite such Lenders name on Schedule 2.01 and (b) the amount set forth for such Lender
in any Assignment and Assumption (or, in the case of any Assuming Lender, the agreement entered
into by such Assuming Lender under Section 2.08) pursuant to which such Lender acquired any such
obligation, if applicable, as such amount may be adjusted from time to time in accordance with this
Agreement. The initial amount of each Lenders Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption (or, in the case of any Assuming Lender, the agreement entered into by
such Assuming Lender under Section 2.08) pursuant to which such Lender shall have assumed its
Commitment, as applicable. The
initial aggregate amount of the Lenders Commitments is $1,300,000,000 as of the Effective
Date.
Letter of Credit Agreement and Reimbursement Agreement
- 5 -
Commitment Increase has the meaning assigned to such term in Section 2.08.
Commitment Increase Date has the meaning assigned to such term in Section 2.08.
Commitment Termination Date means the earlier of (a) the date that is 364 days after
the Closing Date and (b) December 30, 2011 (or if any such date is not a Business Day, the
immediately preceding Business Day).
Company means Chartis Inc., a Delaware corporation.
Confirming Bank means, as provided in Section 2.09 with respect to any Non-NAIC
Approved Bank, any Person (including any Lender) that is an NAIC Approved Bank and that has agreed
in an written agreement to confirm Several Letters of Credit with respect to which such Non-NAIC
Approved Bank is an issuer, which agreement shall be in form and substance reasonably satisfactory
to the Administrative Agent (such an agreement, a Confirming Bank Agreement).
Confirming Bank Agreement has the meaning assigned to such term in the definition of
Confirming Bank.
Contractual Obligation means, as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which such Person is a party
or by which it or any of its property is bound.
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.
Default means any event or condition which constitutes an Event of Default or which,
upon notice, lapse of time or both, would constitute an Event of Default.
Default Rate means a rate per annum equal to 2.00% plus the Alternate Base
Rate as in effect from time to time plus 0.50%.
Defaulting Lender means any Lender that (a) has failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its obligations in respect of
Letters of Credit (including participation obligations therein, if any, hereunder) or (ii) pay over
to the Administrative Agent, any Several L/C Agent or any Lender any other amount required to be
paid by it hereunder, (b) has notified the Company or the Administrative Agent in writing, or has
made a public statement to the effect, that it does not intend or expect to comply with any of its
funding obligations hereunder or in respect of the Letters of Credit or generally under other
agreements in which it commits to extend credit, (c) has failed, within three Business Days after
request by the Administrative Agent, acting in good faith, to confirm in writing in a manner
satisfactory to the Administrative Agent that it will comply with its funding obligations
hereunder (including in respect of the Letters of Credit) (provided that such Lender shall
cease to be a Defaulting Lender pursuant to this clause (c) upon receipt by the Administrative
Agent or
Letter of Credit Agreement and Reimbursement Agreement
- 6 -
the Company, as applicable, of such certification) or (d) has become the subject of a
Bankruptcy Event.
Department means, with respect to any Insurance Subsidiary, the Governmental
Authority of such Insurance Subsidiarys jurisdiction of domicile with which such Insurance
Subsidiary is required to file its Annual Statement (including any jurisdiction of domicile deemed
to be such by virtue of a commercially domiciled or similar standard).
Designated Insurance Subsidiary means any Insurance Subsidiary that is a Designated
Subsidiary.
Designated Subsidiaries means, without duplication, (a) Chartis International, LLC,
Chartis Overseas Limited, Chartis U.S., Inc., National Union Fire Insurance Company of Pittsburgh,
Pa. and American Home Assurance Company; and (b) any Subsidiary formed or organized after the
Effective Date that owns, directly or indirectly, greater than 10% of the Equity Interests in any
other Designated Subsidiary.
Disclosed Matters means any matters disclosed in any Form 10-Q or Form 8-K filed by
AIG with the SEC during the period from and including January 1, 2010 to and including November 5,
2010.
Disclosed Tax Matters means any matters relating to taxes set forth or accounted for
in the Federal Income Taxes or Income Taxes notes, as applicable, to AIGs consolidated
financial statements in any Form 10-Q or 10-K filed by AIG with the SEC during the period from and
including January 1, 2008 to and including November 5, 2010.
Disposition means the sale, transfer, license, sublicense, lease, sublease or other
disposition (including any sale and leaseback transaction and any sale of Equity Interests) of any
property by any Person, including any sale, assignment, transfer or other disposal, with or without
recourse, of any notes or accounts receivable or any rights and claims associated therewith.
Disqualified Stock means any Equity Interest that, by its terms (or by the terms of
any security into which it is convertible or for which it is exchangeable), or upon the happening
of any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, in each case other than
solely for Capital Stock in such Person that does not constitute Disqualified Stock and cash in
lieu of fractional shares of such Capital Stock and at any time on or prior to the first
anniversary of the Commitment Termination Date, or (b) is convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) debt securities or (ii) any Equity Interest
referred to in clause (a) above (other than solely for Capital Stock in such Person that do not
constitute Disqualified Stock and cash in lieu of fractional shares of such Capital Stock), in each
case at any time prior to the first anniversary of the Commitment Termination
Date; provided, however, that Capital Stock in any Person that would not
constitute Disqualified Stock but for terms thereof giving holders thereof the right to require
such Person to redeem or purchase such Capital Stock upon the occurrence of a disposition or a
change of control shall not
Letter of Credit Agreement and Reimbursement Agreement
- 7 -
constitute Disqualified Stock if any such requirement becomes operative
only after repayment in full of all obligations in respect of the Letters of Credit and all other
Obligations that are accrued and payable.
Dollars or $ refers to lawful money of the United States.
Effective Date has the meaning assigned to such term in Section 4.01.
Environmental Laws means all federal, state, local, municipal and foreign Laws
(including common law), treaties, regulations, rules, ordinances, codes, decrees, judgments,
injunctions, permits, directives, orders (including consent orders), and legally binding
requirements of any Governmental Authority, in each case concerning the protection of the
environment, natural resources, human health and safety as it relates to any Hazardous Materials or
the presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling, disposal or handling of,
or the arrangement for such activities with respect to, Hazardous Materials, in each case not
relating to or arising out of the insurance or reinsurance activities of the Company or the
Subsidiaries.
Environmental Liability means all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of (a) actual or alleged compliance or noncompliance with any
Environmental Law, (b) the generation, manufacture, processing, distribution, use, handling,
transport, storage, treatment, recycling or disposal of, or the arrangement for such activities
with respect to, any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release
of any Hazardous Materials or (e) any contract, agreement or other consensual arrangement pursuant
to which a liability or obligation is assumed or imposed with respect to any of the foregoing.
Liabilities of the type described above arising out of the obligation of any Insurance Subsidiary
with respect to its insurance operations shall not constitute Environmental Liabilities
hereunder.
Equity Interests means shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any Person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
ERISA means the Employee Retirement Income Security Act of 1974, as amended from
time to time.
ERISA Affiliate means any trade or business (whether or not incorporated) that,
together with the Company, is treated as a single employer under Section 414(b) or (c) of the Code,
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
ERISA Event means (a) any reportable event, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) any failure by any Plan to satisfy the minimum funding standard
(within the meaning of Section 412 of the Code or Section 302 of ERISA) applicable to
Letter of Credit Agreement and Reimbursement Agreement
- 8 -
such Plan,
whether or not waived, (c) the determination that any Plan is in at-risk status (within the
meaning of Section 430 of the Code and Section 303 of ERISA, (d) the filing pursuant to Section
412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan, (e) the incurrence by the Company or any of its ERISA Affiliates
of any liability under Title IV of ERISA with respect to the termination of any Plan or the
withdrawal or partial withdrawal of the Company or any of its ERISA Affiliates from any Plan or
Multiemployer Plan, (f) the receipt by the Company or any of its ERISA Affiliates from the PBGC or
a plan administrator of any notice relating to the intention to terminate any Plan or Plans or to
appoint a trustee to administer any Plan, (g) the requirement that a Plan provide a security
pursuant to Section 436(f)(i) of the Code, (h) the receipt by the Company or any of its ERISA
Affiliates of any notice, or the receipt by any Multiemployer Plan from the Company or any of its
ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA, (i) the Company or any of the Subsidiaries engaging in a
prohibited transaction with respect to a plan for which the Company or any of the Subsidiaries is
a disqualified person (within the meaning of Section 4975 of the Code) or with respect to which
the Company or any such Subsidiary could otherwise be liable, (j) any other event or condition with
respect to a Plan or Multiemployer Plan that could reasonably be expected to result in liability of
the Company or any Subsidiary under Title IV of ERISA or (k) any Foreign Benefit Event.
Event of Default has the meaning assigned to such term in Article VII.
Excluded Taxes means, with respect to any payment made by the Company, any of the
following Taxes imposed on or with respect to the Recipient: (a) Other Connection Taxes; (b) Taxes
attributable to such Recipients failure or inability to comply with Section 2.05(f); and (c) U.S.
Federal withholding Taxes from a Law in effect (including FATCA) on the date on which (i) such
Recipient acquires directly or indirectly its applicable ownership interest in the Letters of
Credit, participations therein or its Commitment (other than a Recipient acquiring its applicable
ownership interest pursuant to Section 2.07(b)) or (ii) such Recipient changes its lending office,
except in each case to the extent that, pursuant to Section 2.05, amounts with respect to such
taxes were payable either to such Recipients assignor immediately before such Recipient became a
Recipient with respect to its applicable ownership interest in the Letters of Credit or its
Commitment or to such Recipient immediately before it changed its lending office.
Existing L/C Issuer means the Lender which is the issuer of an Existing Letter of
Credit.
Existing Letter of Credit means a letter of credit (if any) that is (a) issued by a
Lender under a bilateral arrangement with the Company at any time on or prior to December 31, 2010
for the account of the Company for purposes consistent with Section 5.10 and (b) outstanding as of
the Closing Date and designated by the Company (with the consent of the
Existing L/C Issuer and the Administrative Agent (such consent, in each case, not to be
unreasonably withheld)) in writing to the Administrative Agent as of the Closing Date to be an
Existing Letter of Credit hereunder.
Letter of Credit Agreement and Reimbursement Agreement
- 9 -
FATCA means Sections 1471 through 1474 of the Code and any regulations or official
interpretations thereof.
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.
Financial Officer means, with respect to any Person, the chief financial officer,
principal accounting officer, treasurer or controller of such Person.
Foreign Benefit Event means, with respect to any Foreign Pension Plan, (a) the
existence of unfunded liabilities in excess of the amount permitted under any applicable Law or in
excess of the amount that would be permitted absent a waiver from a Governmental Authority, (b) the
failure to make the required contributions or payments, under any applicable Law, on or before the
due date for such contributions or payments, (c) the receipt of a notice by a Governmental
Authority relating to the intention to terminate any such Foreign Pension Plan or to appoint a
trustee or similar official to administer any such Foreign Pension Plan, or alleging the insolvency
of any such Foreign Pension Plan, (d) the incurrence of any liability by the Company or any
Subsidiary under applicable Law on account of the complete or partial termination of such Foreign
Pension Plan or the complete or partial withdrawal of any participating employer therein or (e) the
occurrence of any transaction that is prohibited under any applicable Law and that could reasonably
be expected to result in the incurrence of any liability by the Company or any of the Subsidiaries,
or the imposition on the Company or any of the Subsidiaries of any fine, excise tax or penalty
resulting from any noncompliance with any applicable Law.
Foreign Pension Plan means any benefit plan maintained outside of the U.S. primarily
for the benefit of employees working outside the U.S. that under applicable Law is required to be
funded through a trust or other funding vehicle other than a trust or funding vehicle maintained
exclusively by a Governmental Authority.
Fund means any investment vehicle managed by the Company or an Affiliate of the
Company and created in the ordinary course of the Companys asset management business or tax credit
investment business for the purpose of selling and/or holding, directly or indirectly, Equity
Interests in such investment vehicle to third parties.
GAAP means United States generally accepted accounting principles applied on a
consistent basis.
GIC means a guaranteed investment contract or funding agreement or other similar
agreement issued by the Company or any of its Subsidiaries that guarantees to a counterparty a rate
of return on the invested capital over the life of such contract or agreement.
Letter of Credit Agreement and Reimbursement Agreement
- 10 -
Governmental Authority means any federal, state, local, municipal or foreign court
or governmental agency, authority, instrumentality, regulatory body (including any board of
insurance, insurance department or insurance commissioner), court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government.
Guarantee of or by any Person means any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the primary obligor) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; provided that the term Guarantee
shall not include endorsements for collection or deposit in the ordinary course of business.
Hazardous Materials means any pollutant, contaminant, waste or any toxic,
radioactive, ignitable, corrosive, reactive or otherwise hazardous substance, waste or material,
including petroleum, its derivatives, by-products and other hydrocarbons, coal ash, radon gas,
asbestos, asbestos-containing materials, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorohydrocarbons, and any substance, waste or material regulated under any
Environmental Law.
Honor Date has the meaning specified in Section 2.01(c)(i).
Increasing Lender has the meaning assigned to such term in Section 2.08.
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, (c) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person, (d) all obligations
of such Person issued or assumed as the deferred purchase price of property or services (excluding
trade accounts payable and accrued obligations incurred in the ordinary course of business), (e)
all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed (provided that,
for purposes of this clause (e), if such Person has not assumed or otherwise become personally
liable for any such Indebtedness, the amount of the Indebtedness of such Person in connection
therewith shall be limited to the lesser of (i) the fair market value of
such property and (ii) the amount of Indebtedness secured by such Lien), (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all
Synthetic Lease Obligations of such Person, (i) all obligations of such Person as an account party
in respect of letters of credit, (j) all obligations of such Person in respect of bankers
acceptances
Letter of Credit Agreement and Reimbursement Agreement
- 11 -
and (k) all obligations of such person in respect of Disqualified Stock. Indebtedness
shall not include: (i) any obligation of any Person to make any payment, hold funds or securities
or to segregate funds or securities for the benefit of one or more third parties pursuant to any
surety or fidelity bond, any insurance or reinsurance contract or program, any distribution
agreement, any program administrator agreement, managing general agency agreement, third party
administrator agreement, claims services agreement or similar insurance services agreement, or any
annuity contract, variable annuity contract or other similar agreement or instrument (including
GICs and financial guarantees), including any policyholder account, arising in the ordinary course
of any such Persons business; (ii) all other liabilities (or guarantees thereof) of any Person
arising in the ordinary course of any such Persons business as an insurance company, reinsurance
company (including GICs), agency, producer or claims services company or as a provider of financial
or investment services (including GICs); (iii) obligations of any Person under Swap Contracts; (iv)
obligations of any Person under or arising out of any employee benefit plan, employment contract or
other similar arrangement; (v) obligations of any Person under any severance or termination of
employment agreement or plan; (vi) obligations of any Person in respect of the sponsorship of
Catastrophe Bonds transactions; or (vii) utilizing proceeds from the disposition of properties (or
interests therein) generating tax credits to secure guarantee obligations to third party investors
in tax credit Funds, or providing guarantees to third-party investors in tax credit Funds to
protect against recapture of previously-allocated tax credits occurring after the disposition of
such properties (or interests therein). The Indebtedness of any Person shall include the
Indebtedness of any partnership (other than Indebtedness that is nonrecourse to such Person) in
which such Person is a general partner.
Indemnified Taxes means (a) Taxes, other than Excluded Taxes, imposed on or with
respect to any payment made by the Company under any Loan Document and (b) Other Taxes. For
avoidance of doubt, Indemnified Taxes does not include Taxes imposed by applicable Law on a
distribution or similar payment made by a Lender to a Person that is an owner of such Lender with
respect to its ownership interest in such Lender and distributions and similar payments made by
such owners to their owner.
Insurance Subsidiary means any Subsidiary that is required to be licensed as an
insurer or reinsurer.
IRS means the United States Internal Revenue Service.
ISP means, with respect to any Letter of Credit, the International Standby Practices
1998 (International Chamber of Commerce Publication No. 590), or such later version thereof as may
be in effect at the time of issuance of such Letter of Credit.
Joint Lead Arrangers means the Joint Lead Arrangers and Joint Bookrunners listed on
the cover page of this Agreement.
JPMCB means JPMorgan Chase Bank, N.A.
Laws means, collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or
judicial precedents or authorities, including the interpretation or administration thereof by any
Letter of Credit Agreement and Reimbursement Agreement
- 12 -
Governmental Authority charged with the enforcement, interpretation or administration thereof, and
all applicable administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in each case whether or not having the
force of law.
L/C Obligations means, as at any date of determination, the aggregate undrawn amount
of all outstanding Letters of Credit plus the aggregate of all unpaid Unreimbursed Amounts.
For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired
by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14
of the ISP (if applicable thereto), such Letter of Credit shall be deemed to be outstanding in
the amount so remaining available to be drawn. For purposes of determining the L/C Obligations
held by any Lender at any time, a Lender shall be deemed to hold an amount equal to the sum of (a)
the aggregate amount of each Lenders direct obligation in all outstanding Several Letters of
Credit, (b) its participations (if any) in all outstanding Several Letters of Credit and (c) its
Applicable Percentage of all unpaid Unreimbursed Amounts LC Borrowings at such time.
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 Assumption or an instrument executed by
such Person pursuant to Section 2.08, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Assumption; provided that, as the context requires,
Lenders shall include each Several L/C Agent and each Limited Fronting Lender (if any).
Letter of Credit means any standby letter of credit issued hereunder and shall
include the Existing Letter(s) of Credit (which for avoidance of doubt will be deemed issued
hereunder as of the Closing Date).
Letter of Credit Application means an application and agreement for the issuance or
amendment of a Letter of Credit in the form from time to time in use by the applicable Several L/C
Agent.
Letter of Credit Documents means, with respect to any Letter of Credit, the Letter
of Credit Application, and any other document, agreement and instrument entered into by the
applicable Several L/C Agent and the Company (and, if applicable, any Subsidiary named as an
applicant in the Letter of Credit Application) or in favor of such Several L/C Agent and relating
to any such Letter of Credit.
Lien means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or similar right of a third party with respect to such securities.
Limited Fronting Lender means, as provided in Section 2.01(k), (a) any Lender (so
long as it is not an Affected Lender with respect to a particular Several Letter of Credit) that
agrees that it shall be an issuer with respect to any Affected Lenders Applicable Percentage of a
Letter of Credit Agreement and Reimbursement Agreement
- 13 -
particular Several Letter of Credit or (b) any Lender which is a NAIC Approved Bank that agrees
that it shall be an issuer with respect to any Non-NAIC Approved Banks Applicable Percentage of
Several Letters of Credit outstanding and/or issued during the period that such Non-NAIC Approved
Bank is a Non-NAIC Approved Bank, in each case pursuant to a Limited Fronting Lender Agreement.
Limited Fronting Lender Agreement has the meaning assigned to such term in Section
2.01(k).
Loan Documents means, collectively, this Agreement and the Letter of Credit
Documents.
Margin Stock means margin stock within the meaning of Regulations T, U and X of
the Board.
Material Adverse Change means a material adverse effect on (a) the business,
operations, property or condition (financial or otherwise) of the Company and its Subsidiaries
taken as a whole, (b) the ability of the Company to perform its obligations under the Loan
Documents or (c) the validity or enforceability of any of the Loan Documents or the rights or
remedies of the Agents and the Lenders thereunder.
Material AIG Indebtedness means Indebtedness (other than reimbursement obligations
in respect of the Letters of Credit and Indebtedness of a subsidiary of AIG of the type permitted
under Section 6.01(h)), or obligations in respect of one or more Swap Contracts, of any one or more
of AIG and its subsidiaries in an aggregate principal amount exceeding $500,000,000. For purposes
of determining Material Indebtedness, the principal amount of the obligations of AIG or any
subsidiary in respect of any Swap Contract at any time shall be the Agreement Value of such Swap
Contract at such time.
Material Indebtedness means Indebtedness (other than reimbursement obligations in
respect of the Letters of Credit), or obligations in respect of one or more Swap Contracts, of any
one or more of the Company and its Subsidiaries in an aggregate principal amount exceeding
$500,000,000. For purposes of determining Material Indebtedness, the principal amount of the
obligations of the Company or any Subsidiary in respect of any Swap Contract at any time shall be
the Agreement Value of such Swap Contract at such time.
Material Subsidiaries means, without duplication, (a) any Designated Subsidiary; (b)
any Subsidiary that has total assets in excess of 2% of the consolidated total assets of AIG and
its Subsidiaries (based upon and as of the date of filing of the most recent consolidated balance
sheet of AIG publicly filed with the SEC); and (c) any Subsidiary that owns, directly or
indirectly, greater than 10% of the Equity Interests in any other Material Subsidiary;
provided that, notwithstanding the foregoing, so long as Fuji Fire & Marine Insurance
Company, Limited (Fuji Fire & Marine) shall not be a wholly-owned Subsidiary of
the Company, neither Fuji Fire & Marine nor any of its Subsidiaries shall be considered a
Material Subsidiary.
Moodys means Moodys Investors Service, Inc.
Letter of Credit Agreement and Reimbursement Agreement
- 14 -
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
NAIC means the National Association of Insurance Commissioners or any successor
thereto, or in the absence of the National Association of Insurance Commissioners or such
successor, any other association, agency or other organization performing advisory, coordination or
other like functions among insurance departments, insurance commissioners and similar Governmental
Authorities of the various states of the United States toward the promotion of uniformity in the
practices of such Governmental Authorities.
NAIC Approved Bank means any Lender that is listed on the most current Bank List
of banks approved by the NAIC; provided that if such Lender is a Non-U.S. Lender, such
Lender is acting through the United States branch of such Lender listed on such Bank List.
Non-Defaulting Lender means, at any time, any Lender that is not a Defaulting
Lender.
Non-Extension Notice Date has the meaning assigned to such term in Section
2.01(b)(v).
Non-NAIC Approved Bank means, at any time, any Lender that is not a NAIC Approved
Bank.
Non-U.S. Lender means a Lender that is not a U.S. Person.
Obligations means all advances to, and debts, liabilities, obligations, covenants
and duties of, the Company arising under any Loan Document or otherwise with respect to any Letter
of Credit (including all L/C Obligations thereunder), whether direct or indirect (including those
acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter
arising and including interest and fees that accrue after the commencement by or against the
Company or any Affiliate thereof of any case, proceeding or other action relating to the
bankruptcy, insolvency or reorganization naming such Person as the debtor in such case, proceeding
or action, regardless of whether such interest and fees are allowed claims in such proceeding.
OFAC has the meaning assigned to such term in Section 3.15.
Organization Documents means, (a) with respect to any corporation, the certificate
or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents
with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or organization and any
agreement, instrument, filing or notice with respect thereto filed in connection with its formation
or organization with the applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or organization of such
entity.
Letter of Credit Agreement and Reimbursement Agreement
- 15 -
Other Connection Taxes means, with respect to any Recipient, Taxes imposed as a
result of a present or former connection between such Recipient and the jurisdiction imposing such
Taxes (other than a connection solely arising from such Recipient having executed, delivered,
enforced, become a party to, performed its obligations under, received payments under, received or
perfected a security interest under, or engaged in any other transaction pursuant to, or enforced,
or sold or assigned an interest in any Loan Document). For avoidance of doubt, branch profit taxes
shall be treated as Other Connection Taxes.
Other Taxes means any present or future stamp, court, documentary, intangible,
recording, filing or similar excise or property Taxes that arise from any payment made under, from
the execution, delivery, performance, enforcement or registration of, or from the registration,
receipt or perfection of a security interest under, or otherwise with respect to, any Loan
Document, except any such Taxes that are Other Connection Taxes or Taxes imposed with respect to an
assignment or participation.
Outstanding Amount means, with respect to any L/C Obligations on any date, the
amount of such L/C Obligations at the close of business on such date after giving effect to any
issuance, amendment or extension of any Letter of Credit occurring on such date and any other
changes in the aggregate amount of the L/C Obligations as of such date, including such changes
resulting from any reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit taking effect on
such date.
Participant Register has the meaning assigned to such term in Section 9.04(c).
Participating L/C Issuer means, from time to time with respect to each Several
Letter of Credit, each Affected Lender or Non-NAIC Approved Bank, as applicable, for whose
Applicable Percentage a Limited Fronting Lender has agreed to be liable as an issuer.
PBGC means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.
Person means any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
Plan means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA,
and in respect of which the Company or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an employer as defined in Section 3(5) of
ERISA.
Potential Divestitures means the potential divestitures by the Company and its
Subsidiaries identified in the letter delivered by AIG in connection with this Agreement to the
Administrative Agent and the Lenders on or prior to the Effective Date.
Prime Rate means the rate of interest per annum publicly announced from time to time
by JPMCB as its prime rate in effect at its principal office in New York City; each
Letter of Credit Agreement and Reimbursement Agreement
- 16 -
change in the
Prime Rate shall be effective from and including the date such change is publicly announced as
being effective.
Quarterly Payment Date means the first Business Day of each of January, April, July
and October in each year.
Quarterly Statement means the quarterly statutory financial statement of any
Insurance Subsidiary required to be filed with the insurance commissioner (or similar authority) of
its jurisdiction of organization or, if no specific form is so required, in the form of financial
statements permitted by such insurance commissioner (or such similar authority) to be used for
filing quarterly statutory financial statements and containing the type of financial information
permitted by such insurance commissioner (or such similar authority) to be disclosed therein,
together with all exhibits or schedules filed therewith.
Recipient means, as applicable, (a) the Administrative Agent, (b) any Several L/C
Agent and (c) any Lender (and, in the case of a Lender that is classified as a partnership for U.S.
Federal tax purposes, a Person treated as a beneficial owner thereof for U.S. Federal tax
purposes).
Register has the meaning assigned to such term in Section 9.04(b)(iv).
Regulation T means Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation U means Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Regulation X means Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
Reinsurance Agreements means any agreement, contract, treaty, certificate or other
arrangement by which any Insurance Subsidiary agrees to transfer or cede to another insurer that is
not an Affiliate of the Company all or part of the liability assumed or assets held by it under one
or more insurance, annuity, reinsurance or retrocession policies, agreements, contracts, treaties,
certificates or similar arrangements. Reinsurance Agreements shall include, but not be limited to,
any agreement, contract, treaty, certificate or other arrangement that is treated as such by the
applicable Department.
Related Parties means, with respect to any specified Person, such Persons
Affiliates and the respective directors, officers, employees, agents, attorneys, accountants and
other professional advisors of such Person and of such Persons Affiliates.
Release means any release, spill, emission, leaking, dumping, pumping, emptying,
escaping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into
or through the environment or within, at, to, under, from or upon any building, structure, facility
or fixture.
Letter of Credit Agreement and Reimbursement Agreement
- 17 -
Required Lenders means, at any time, Lenders having more than 50% of the total
Commitments or, if the Commitment of each Lender has been terminated pursuant to Article VII,
Lenders holding more than 50% of all L/C Obligations (with the aggregate amount of each Lenders
issuer liability or risk participation and funded participation in L/C Obligations, if any, being
deemed held by such Lender for purposes of this definition); provided that the
Commitments or L/C Obligations, as the case may be, of any Defaulting Lender shall be excluded for
purposes of making a determination of Required Lenders.
Responsible Officer means, with respect to any Person, any executive officer or
Financial Officer of such Person and any other officer or similar official thereof responsible for
the administration of the obligations of such Person in respect of this Agreement.
S&P means Standard & Poors Ratings Group.
SAP means, with respect to any Insurance Subsidiary, the statutory accounting
practices prescribed or permitted by the insurance commissioner (or other similar authority) in the
domicile of such Insurance Subsidiary for the preparation of annual statements and other financial
reports of such Insurance Subsidiary, which are applicable to the circumstances as of the date of
filing of such statement or report.
SEC means the Securities and Exchange Commission, or any regulatory body that
succeeds to the functions thereof.
Several L/C Agent means (a) (except as provided in clause (b) below) JPMCB, in its
capacity as agent and attorney-in-fact for the Lenders in issuing and amending Several Letters of
Credit, or any successor in such capacity; and (b) the Existing L/C Issuer, in its capacity as
agent and attorney-in-fact for the Lenders with respect to each Several Letter of Credit that is an
Existing Letter of Credit and deemed issued hereunder as of the Closing Date, or any successor in
such capacity. References herein to the applicable Several L/C Agent with respect to any Letter
of Credit shall refer to that Several L/C Agent which is acting as agent and attorney-in-fact for
the Lenders in connection with such Letter of Credit.
Several Letter of Credit means any Letter of Credit issued severally by the Lenders.
subsidiary means, with respect to any Person (herein referred to as the
parent), any corporation, partnership, limited liability company, association or other
business entity of which securities or other ownership interests representing more than 50% of the
ordinary voting power or more than 50% of the general partnership or managing limited liability
company interests (as applicable) are, at the time any determination is being made, owned,
Controlled or held directly or indirectly by such parent; provided that no Fund shall be a
subsidiary for the purpose hereof.
Subsidiary means any direct or indirect subsidiary of the Company.
Swap Contract means (a) any and all rate swap transactions, basis swaps, credit
derivative transactions, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price or
Letter of Credit Agreement and Reimbursement Agreement
- 18 -
bond index
swaps or options or forward bond or forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
emission rights, spot contracts, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement and (b) any and all transactions of
any kind, and the related confirmations, which are subject to the terms and conditions of, or
governed by, any form of master agreement published by the International Swaps and Derivatives
Association, Inc., any International Foreign Exchange Master Agreement, or any other master
agreement (any such master agreement, together with any related schedules, a Master
Agreement), including any such obligations or liabilities under any Master Agreement;
provided that Swap Contracts shall not include (i) any right, option, warrant or other
award made under an employee benefit plan, employment contract or other similar arrangement or (ii)
any right, warrant or option or other convertible or exchangeable security or other instrument
issued by the Company or any Subsidiary or Affiliate of the Company or any Subsidiary for capital
raising purposes.
Syndication Agents means the Co-Syndication Agents listed on the cover page of this
Agreement.
Synthetic Lease means, as to any Person, any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) (a) that is
accounted for as an operating lease under GAAP and (b) in respect of which the lessee retains or
obtains ownership of the property so leased for U.S. federal income tax purposes, other than any
such lease under which such Person is the lessor.
Synthetic Lease Obligations means, as to any Person, an amount equal to the
capitalized amount of the remaining lease payments under any Synthetic Lease that would appear on a
balance sheet of such Person in accordance with GAAP if such obligations were accounted for as
Capital Lease Obligations.
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 Company of the
Loan Documents, the issuance of Letters of Credit for the account of the Company hereunder and the
use thereof.
UCP means the rules of the Uniform Customs and Practice for Documentary Credits, as
most recently published by the International Chamber of Commerce at the time of issuance of a
Letter of Credit or such earlier version thereof as may be required by the applicable Governmental
Authority or beneficiary.
Unreimbursed Amount has the meaning assigned to such term in Section 2.01(c)(i).
U.S. or United States means the United States of America.
Letter of Credit Agreement and Reimbursement Agreement
- 19 -
U.S. Person means a United States person within the meaning of Section 7701(a)(30)
of the Code.
U.S. Tax Certificate has the meaning assigned to such term in Section
2.05(f)(ii)(D)(2).
Withdrawal Liability means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
Withholding
Agent means the Company and the Administrative Agent.
SECTION 1.02. 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 definition of or reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments,
supplements or modifications set forth herein), (b) any reference to any Law shall include all
statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and
any reference to any Law or regulation shall, unless otherwise specified, refer to such Law or
regulation as from time to time amended, supplemented or otherwise modified, (c) any reference
herein to any Person shall be construed to include such Persons successors and assigns, (d) 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, (e) 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 and (f) the words asset and property
shall be construed to have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.03. Accounting Terms and Determinations. Except as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests an amendment to
any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP
or in the application thereof on the operation of such provision (or if the Administrative Agent
notifies the Company that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before such change shall have
become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith.
Letter of Credit Agreement and Reimbursement Agreement
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ARTICLE II
THE CREDITS
SECTION 2.01. Letters of Credit. (a) Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth herein, from time to time on any Business
Day during the Availability Period, each Lender agrees, through the applicable Several L/C Agent,
(1) to issue severally, and for itself alone, Several Letters of Credit at the request of and for
the account of the Company in such Lenders Applicable Percentage of the aggregate stated amounts
of such Several Letters of Credit, and to amend or extend Several Letters of Credit previously
issued by it, and (2) to honor severally, and for itself alone, drawings under the Several Letters
of Credit in an amount equal to its Applicable Percentage of such drawings; provided that
after giving effect to any issuance, amendment or extension, (x) the aggregate Outstanding Amount
of all L/C Obligations shall not exceed the total Commitments, and (y) the aggregate Outstanding
Amount of the L/C Obligations owing to such Lender (whether as an issuer or as a participant) shall
not exceed such Lenders Commitment (except as provided in Section 2.01(k) for a Limited Fronting
Lender). Each request by the Company for the issuance, amendment or extension of a Letter of
Credit shall be deemed to be a representation by the Company that such issuance, amendment or
extension so requested complies with the conditions set forth in this Agreement. Within the
foregoing limits, and subject to the terms and conditions hereof, the Companys ability to obtain
Letters of Credit shall be fully revolving, and accordingly the Company may, during the
Availability Period, obtain Letters of Credit to replace Letters of Credit that have expired or
that have been drawn upon and reimbursed.
Each Several Letter of Credit shall be a standby letter of credit in such form as the Company
shall request and which the Administrative Agent and the applicable Several L/C Agent shall
determine in good faith does not contain any obligations, or diminish any rights, of any Lender
with respect thereto or other terms thereof that are inconsistent with the terms hereof. Without
the prior consent of each Lender, no Several Letter of Credit may be issued that would vary the
several and not joint nature of the obligations of the Lenders thereunder, and (subject to the
provisions contained herein regarding Limited Fronting Lenders and Defaulting Lenders) each Several
Letter of Credit shall be issued (through the applicable Several L/C Agent) by all of the Lenders
having Commitments at the time of issuance as a single multi-bank letter of credit, but the
obligation of each Lender thereunder shall be several and not joint based upon its Applicable
Percentage of the aggregate undrawn amount of such Letter of Credit.
If requested by the Company but subject to the terms and conditions hereof, a Letter of Credit
shall satisfy the requirements for letters of credit under the credit-for-reinsurance
provisions of the insurance Laws applicable to the relevant beneficiary (or the requirements
for similar purposes of such other Governmental Authority which then regulates the relevant
beneficiarys insurance business as may be specified by the Company) as to which the Company
provides written notice to the applicable Several L/C Agent and the Administrative Agent prior to
the date of issuance of such Letter of Credit; provided that the Several L/C Agent, the
Administrative Agent or any Lender shall not be obligated to verify such satisfaction.
All Existing Letters of Credit shall be deemed to have been issued pursuant hereto
Letter of Credit Agreement and Reimbursement Agreement
- 21 -
by the
applicable Several L/C Agent (on behalf of the Lenders) and shall be amended as provided herein as
of the Closing Date, and from and after the Closing Date shall be subject to and governed by the
terms and conditions hereof.
(ii) Neither the applicable Several L/C Agent nor the Lenders (including for avoidance of
doubt Limited Fronting Lenders), as applicable, shall issue any Letter of Credit, if:
(A) subject to Section 2.01(b)(v), the expiry date of such Letter of Credit would occur
more than twelve months after the date of issuance or last extension, unless the Required
Lenders have approved such expiry date; or
(B) the expiry date of such Letter of Credit would occur after the Commitment
Termination Date, unless all the Lenders have approved such expiry date;
(iii) Neither the applicable Several L/C Agent nor any Lender (including for avoidance of
doubt Limited Fronting Lenders), as applicable, shall be under any obligation to issue any Letter
of Credit if:
(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by
its terms purport to enjoin or restrain such Several L/C Agent or, if the Administrative
Agent has been notified thereof by such Lender, any Lender from issuing such Letter of
Credit, or any Law applicable to such Several L/C Agent or, if the Administrative Agent has
been notified thereof by such Lender, any Lender or any request or directive (whether or not
having the force of law) from any Governmental Authority with jurisdiction over such Several
L/C Agent or, if the Administrative Agent has been notified thereof by such Lender, any
Lender shall prohibit, or request that such Several L/C Agent or, if the Administrative
Agent has been notified thereof by such Lender, any Lender refrain from, the issuance of
letters of credit generally or such Letter of Credit in particular or shall impose upon such
Several L/C Agent or, if the Administrative Agent has been notified thereof by such Lender,
any Lender with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which such Several L/C Agent or, if the Administrative Agent has been
notified thereof by such Lender, any Lender is not otherwise compensated hereunder) not in
effect on the Effective Date, or shall impose upon such Several L/C Agent or, if the
Administrative Agent has been notified thereof by such Lender, any Lender any unreimbursed
loss, cost or expense which was not applicable on the Closing Date and which such Several
L/C Agent or, if the Administrative Agent has been notified thereof by such Lender, any
Lender in good faith deems material to it;
(B) the issuance of such Letter of Credit would violate one or more policies of such
Several L/C Agent or, if the Administrative Agent has been notified thereof by such Lender,
any Lender, as applicable, applicable to letters of credit generally;
(C) except as otherwise agreed by such Several L/C Agent, such Letter of Credit is in
an initial amount of less than $1,000,000;
Letter of Credit Agreement and Reimbursement Agreement
- 22 -
(D) after the issuance of such Letter of Credit, more than fifteen (15) Letters of
Credit would be outstanding unless the Company, such Several L/C Agent and the
Administrative Agent otherwise agree;
(E) such Letter of Credit is to be denominated in a currency other than Dollars;
(F) such Letter of Credit contains any provisions for automatic reinstatement of the
stated amount after any drawing thereunder; or
(G) with respect to such Letter of Credit in respect of which there is a Limited
Fronting Lender for any Affected Lender or Non-NAIC Approved Bank, such Affected Lender or
Non-NAIC Approved Bank is a Defaulting Lender, unless such Limited Fronting Lender has
entered into arrangements satisfactory to it with the Company and/or such Defaulting Lender
to eliminate such Limited Fronting Lenders risk with respect to such Defaulting Lender.
(iv) Subject to Section 2.01(b)(v), neither the applicable Several L/C Agent nor any Lender,
as applicable, shall amend or extend any Letter of Credit if it would not be permitted at such time
to issue such Letter of Credit in its amended form under the terms hereof.
(v) Neither the applicable Several L/C Agent nor any Lender, as applicable, shall be under any
obligation to amend any Letter of Credit if (A) such Several L/C Agent or such Lender, as
applicable, would have no obligation at such time to issue such Letter of Credit in its amended
form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(vi) Each Lender shall promptly notify the Administrative Agent (which shall in turn notify
the applicable Several L/C Agent and the Company) upon becoming an Affected Lender with respect to
a particular Several Letter of Credit. In the absence of receipt by the Administrative Agent of
such notice by a Lender that it has become an Affected Lender with respect to a particular Several
Letter of Credit, it shall be conclusively presumed by the Administrative Agent and the applicable
Several L/C Agent that such Lender is not an Affected Lender with respect to such Several Letter of
Credit. If such notice is given by an Affected Lender with respect to a particular Several Letter
of Credit, such notice shall not be effective as a like notice with respect to any other Several
Letter of Credit.
(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of
Credit. (i) Each Letter of Credit shall be issued or amended, as the case may be, upon the
application and request of the Company or any of its Insurance Subsidiaries, by the delivery to (A)
the applicable Several L/C Agent and (B) the Administrative Agent (which shall promptly notify the
Lenders of such request), in each case, of a Letter of Credit Application, appropriately completed
and signed by a Responsible Officer of the Company (and, if applicable, of the Subsidiary named
therein as an applicant). Such Letter of Credit Application must be received by such Several L/C
Agent and the Administrative Agent not later than 11:00
Letter of Credit Agreement and Reimbursement Agreement
- 23 -
|
|
a.m., New York City time, at least three
Business Days prior to the proposed issuance date or date of amendment, as the case may be, of any
Several Letter of Credit. |
In the case of a request by the Company for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to the applicable
Several L/C Agent:
(A) if applicable, the name of the Subsidiary of the Company to be an applicant with
respect to the requested Letter of Credit (and certifying that such Subsidiary is an
Insurance Subsidiary);
(B) the proposed issuance date of such Letter of Credit (which shall be a Business
Day);
(C) the amount thereof;
(D) the expiry date thereof;
(E) the name and address of the beneficiary or beneficiaries thereof;
(F) the documents to be presented by such beneficiary, if any, in case of any drawing
thereunder;
(G) the full text of any certificate to be presented by such beneficiary, if any, in
case of any drawing thereunder;
(H) the purpose and nature of the requested Letter of Credit;
(I) whether such Letter of Credit shall be issued under the rules of the ISP or the
UCP; and
(J) such other matters as such Several L/C Agent or the Administrative Agent, as
applicable, may reasonably require.
In the case of a request by the Company for an amendment of any outstanding Letter of Credit,
such Letter of Credit Application shall specify in form and detail satisfactory to the applicable
Several L/C Agent:
(I) the Letter of Credit to be amended;
(II) the proposed date of amendment thereof (which shall be a Business Day);
(III) the nature of the proposed amendment; and
(IV) such other matters as such Several L/C Agent or the Administrative Agent, as
applicable, may reasonably require.
Letter of Credit Agreement and Reimbursement Agreement
- 24 -
Additionally, the Company shall, and shall (if applicable) cause any Subsidiary party to the
relevant Letter of Credit Application to, furnish to the applicable Several L/C Agent and the
Administrative Agent such other documents and information pertaining to such requested Letter of
Credit issuance or amendment, as such Several L/C Agent or the Administrative Agent, as applicable,
may reasonably require.
(ii) Promptly after receipt of any Letter of Credit Application, the applicable Several L/C
Agent will confirm with the Administrative Agent (by telephone or in writing) that the
Administrative Agent has received a copy of such Letter of Credit Application from the Company and,
if applicable, any Subsidiary, and, if not, such Several L/C Agent will provide the Administrative
Agent with a copy thereof. Unless such Several L/C Agent has received written notice from any
Lender, the Administrative Agent or the Company, at least two Business Days prior to the requested
date of issuance or amendment of the applicable Letter of Credit, that such Letter of Credit is not
permitted to be issued hereunder or that one or more applicable conditions contained in Sections
4.02 and 4.03 shall not then be satisfied, then, subject to the terms and conditions hereof, such
Several L/C Agent shall, on the requested date, issue a Letter of Credit for the account of the
Company or enter into the applicable amendment, as the case may be, in each case in accordance with
such Several L/C Agents, as applicable, usual and customary business practices.
(iii) The applicable Several L/C Agent is hereby authorized to execute and deliver each
Several Letter of Credit and each amendment to a Several Letter of Credit on behalf of each Lender
and to otherwise act on behalf of each Lender with respect to each Several Letter of Credit, in
each case, in accordance with the terms hereof. Without limiting the foregoing, as of the Closing
Date, the Several L/C Agent with respect to each Existing Letter of Credit is hereby authorized to
amend such Letter of Credit in a manner such that such Letter of Credit as amended shall be in the
form of a Several Letter of Credit in accordance with the terms hereof (including to reflect the
Applicable Percentage of each Lender as its Percentage Obligation (or equivalent term)
thereunder). The applicable Several L/C Agent shall use the Applicable Percentage of each Lender
as its Percentage Obligation (or equivalent term) under each Several Letter of Credit;
provided that each Limited Fronting Lender (if any), in its capacity as such, shall, in
addition to its own Percentage Obligation as a Lender, have a Percentage Obligation (or
equivalent term) equal to the Applicable Percentage (or the portion thereof, if applicable) of each
Participating L/C Issuer for which such Limited Fronting Lender acts in such capacity under such
Several Letter of Credit. Subject to the proviso to the first sentence of Section 2.01(a)(i), the
applicable Several L/C Agent is hereby authorized to amend a Several Letter of Credit to change the
Percentage Obligation (or equivalent term) of a Lender or add or delete a Lender liable
thereunder in connection with an assignment or any other addition or
replacement of a Lender in accordance with the terms of this Agreement (including in
connection with changes resulting from the reallocation of L/C Obligations pursuant to Section
2.10). In the event that a Lender becomes a Participating L/C Issuer or ceases to be a
Participating L/C Issuer, the applicable Several L/C Agent is hereby authorized to amend each
Several Letter of Credit to reflect such change in status and to change the Percentage Obligation
(or equivalent term) of the applicable Limited Fronting Lender, as the case may be. Each Lender
(including for avoidance of doubt each Limited Fronting Lender) hereby irrevocably constitutes and
appoints each Several L/C Agent its true and lawful attorney-in-fact for and on behalf of such
Lender for
Letter of Credit Agreement and Reimbursement Agreement
- 25 -
the limited purpose of issuing, executing and delivering, as the case may be, each
Several Letter of Credit and each amendment to a Several Letter of Credit and for carrying out the
purposes of this Agreement with respect to Several Letters of Credit, in each case, in accordance
with the terms hereof.
(iv) It is the intention and agreement of the Administrative Agent, the Lenders and the
Several L/C Agents that (A) except as otherwise expressly set forth herein (including with respect
to Limited Fronting Lenders, if any), the rights and obligations of the Lenders in respect of
outstanding Several Letters of Credit shall be determined in accordance with the Applicable
Percentages of the Lenders from time to time in effect and (B) subject to the proviso to the first
sentence of Section 2.01(a)(i), outstanding Several Letters of Credit shall be promptly amended to
reflect changes in the Applicable Percentages of the Lenders under this Agreement arising from time
to time in connection with any event or circumstance contemplated hereby, including a Lender acting
as a Limited Fronting Lender for any Affected Lender or Non-NAIC Approved Bank pursuant to Section
2.01(k), a replacement of a Lender pursuant to Section 2.07(b), an increase of the Commitments
pursuant to Section 2.08, a reallocation of L/C Obligations held by a Defaulting Lender pursuant to
Section 2.10, an assignment pursuant to Section 9.04 or otherwise. However, it is acknowledged by
the Administrative Agent, the Lenders and the Several L/C Agents that amendments of outstanding
Several Letters of Credit may not be immediately effected and may be subject to the consent of the
beneficiaries of such Several Letters of Credit. Accordingly, whether or not Several Letters of
Credit are amended as contemplated hereby (including Existing Letters of Credit), the Lenders agree
that they shall purchase and sell participations (as provided in Section 2.01(l)) or otherwise make
or effect such payments among themselves (but through the Administrative Agent) so that payments by
the Lenders of drawings under Several Letters of Credit and payments by the Company of Unreimbursed
Amounts and interest thereon are, except as otherwise expressly set forth herein (including with
respect to Limited Fronting Lenders and Defaulting Lenders), in each case shared by the Lenders in
accordance with the Applicable Percentages of the Lenders from time to time in effect.
(v) If the Company so requests in any applicable Letter of Credit Application, the applicable
Several L/C Agent (on behalf of the Lenders) will issue or amend a Letter of Credit (including any
Existing Letter of Credit) to provide for automatic extension provisions (each, an
Auto-Extension Letter of Credit); provided that any such Auto-Extension Letter of
Credit must permit such Several L/C Agent to prevent any such extension by giving notice to the
beneficiary thereof prior to the thirtieth (30th) day (or such earlier day as set forth
in the applicable Letter of Credit) preceding the then current expiration date of such Letter of
Credit (the Non-Extension Notice Date). The Company shall not be required to make a
specific
request to such Several L/C Agent for any such extension. Once an Auto-Extension Letter of
Credit has been issued, the Lenders shall be deemed to have authorized the applicable Several L/C
Agent to permit the extension of such Letter of Credit to an expiry date not later than twelve
months from the then existing expiry date; provided, however, that such Several L/C
Agent shall not permit any such extension (and shall give a notice of non-extension to the relevant
beneficiary of such Letter of Credit prior to the Non-Extension Notice Date pursuant to the terms
thereof) if (A) such Several L/C Agent (on behalf of the Lenders) has determined that it would not
be permitted, or would have no obligation, at such time to issue such Letter of Credit in its
Letter of Credit Agreement and Reimbursement Agreement
- 26 -
revised form (as extended) under the terms hereof (by reason of the provisions of clause (ii) or
(iii) of Section 2.01(a) or otherwise), and such Several L/C Agent has provided notice thereof to
the Company no later than the Non-Extension Notice Date, (B) it has received notice on or before
the day that is five Business Days before the Non-Extension Notice Date from the Administrative
Agent, any Lender or the Company that one or more of the applicable conditions specified in Section
4.03 is not then satisfied (or, in the case of the Company, that the Company does not want such
Letter of Credit to be extended), and in each such case directing such Several L/C Agent not to
permit such extension, or (C) such extension would result in the extension of the expiry date of
such Letter of Credit to a date after the Commitment Termination Date.
(vi) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of
Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable
Several L/C Agent will also deliver to the Company and the Administrative Agent a true and complete
copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements. (i) Upon receipt from the beneficiary of any
Several Letter of Credit of any notice of a drawing under such Several Letter of Credit, the
applicable Several L/C Agent shall notify the Administrative Agent, and the Administrative Agent
shall notify the Company and the Lenders, thereof, which notices shall be given promptly and in any
event at least one Business Day before the date (the Honor Date) on which the applicable
Several L/C Agent anticipates that payment of such drawing will be made. Not later than 10:00
a.m., New York City time, on the Honor Date and without further notice or demand by such Several
L/C Agent or the Administrative Agent, (A) each Lender (including each Limited Fronting Lender, but
excluding each Participating L/C issuer) shall make funds available to the Administrative Agent at
the Administrative Agents Office in an amount equal to its Applicable Percentage (and, in the case
of each Limited Fronting Lender, the Applicable Percentage (or the portion thereof for which it has
agreed to be a Limited Fronting Lender) of each applicable Participating L/C Issuer) of the drawing
under such Several Letter of Credit (and the Administrative Agent shall make such funds available
to the applicable Several L/C Agent) and (B) in the event that a Limited Fronting Lender pays the
Applicable Percentage of a Participating L/C Issuer, such Participating L/C Issuer shall pay such
Applicable Percentage (or the relevant portion thereof, if applicable) to such Limited Fronting
Lender in purchase of its participation in such payment. Not later than 2:00 p.m., New York City
time, on the Honor Date, so long as the Company has received notice of payment under such Several
Letter of Credit from such Several L/C Agent or the Administrative Agent by 10:00 a.m., New York
City time, on the Honor Date and, otherwise, not later than 2:00 p.m., New York City time, on the
following Business Day the Company shall pay to the Lenders through the Administrative Agent an
amount equal to the amount of such drawing (such amount, the Unreimbursed Amount)
without further demand. Any notice given by such Several L/C Agent or the Administrative
Agent pursuant to this Section 2.01(c)(i) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Notwithstanding the date on which an Unreimbursed Amount is payable by the Company
pursuant to Section 2.01(c)(i), if an Unreimbursed Amount is not paid by the Company by 2:00 p.m.,
New York City time, on the applicable Honor Date, each Unreimbursed Amount shall bear interest from
the applicable Honor Date to the date that such Unreimbursed
Letter of Credit Agreement and Reimbursement Agreement
- 27 -
Amount is paid by the Company at a
rate per annum equal to the Default Rate.
(iii) Until a Lender funds its obligation pursuant to this Section 2.01(c), interest in
respect of such Lenders Applicable Percentage of any Unreimbursed Amount shall be solely for the
account of the applicable Several L/C Agent (if such Several L/C Agent has funded on behalf of such
Lender, as provided in Section 2.01(c)(v)), as applicable.
(iv) Each Lenders (including for avoidance of doubt each Limited Fronting Lenders and each
Participating L/C Issuers) obligation to fund its obligations pursuant to this Section 2.01(c),
shall be absolute and unconditional and shall not be affected by any circumstance, including (A)
any set-off, counterclaim, recoupment, defense or other right which such Lender may have against
the applicable Several L/C Agent, the Administrative Agent, the Company, any Subsidiary or any
other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any
other occurrence, event or condition, whether or not similar to any of the foregoing.
(v) If any Lender fails to make available to the Administrative Agent any amount required to
be paid by such Lender pursuant to the foregoing provisions of this Section 2.01(c) by the time
specified in Section 2.01(c)(i), the applicable Several L/C Agent (to the extent that such Several
L/C Agent shall have funded such amount on behalf of such Lender, it being understood and agreed
that neither such Several L/C Agent nor the Administrative Agent shall have any obligation or
liability to fund any amount under any Several Letter of Credit other than in its capacity as a
Lender) shall, through the Administrative Agent, be entitled to recover from such Lender, on
demand, such amount with interest thereon for the period from the date such payment is required to
the date on which such payment is immediately available to the Administrative Agent at a rate per
annum equal to the Federal Funds Effective Rate from time to time in effect. A certificate of the
applicable Several L/C Agent with respect to any amounts owing under this clause (v) shall be
conclusive absent manifest error.
(vi) The obligations of the Lenders hereunder to honor drawings under, and/or (if applicable)
to fund participations in, Letters of Credit are several and not joint. The failure of any Lender
to fund any such drawing or participation on any date required hereunder shall not relieve any
other Lender of its corresponding obligation to do so on such date, and except for Limited Fronting
Lenders with respect to Letters of Credit they have issued on behalf of Affected Lenders or
Non-NAIC Approved Banks, no Lender shall be responsible for the failure of any other Lender to
honor a drawing or purchase its participation.
(d) Repayment of Fundings. (i) If after any Lender has funded its obligation
under Section 2.01(c) in respect of any drawing under any Letter of Credit, the Administrative
Agent receives any payment (including any payment of interest) in respect of the related
Unreimbursed Amount (whether directly from the Company or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), then the Administrative Agent will
distribute to such Lender its Applicable Percentage (or other applicable share as provided herein)
thereof (appropriately adjusted, in the case of interest payments, to reflect the period of time
during which such Lenders funding was outstanding) in the same funds as those received by the
Administrative Agent. If any Lender has not funded its obligation as aforesaid, such Lenders
Applicable Percentage (or other applicable share as provided herein) of such payment shall be
Letter of Credit Agreement and Reimbursement Agreement
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paid
to the applicable Several L/C Agent (if such Several L/C Agent shall have funded on behalf of such
Lender, as provided in Section 2.01(c)(v)).
(ii) If any payment made by the Administrative Agent to the Lenders pursuant to Section
2.01(d)(i) is required to be returned under any of the circumstances described in Section 9.08
(including pursuant to any settlement), each Lender shall pay to the Administrative Agent its
Applicable Percentage (or other applicable share as provided herein) thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the Federal Funds Effective Rate
from time to time in effect.
(e) Obligations Absolute. The obligation of the Company to pay each Unreimbursed
Amount shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance
with the terms of this Agreement under all circumstances whatsoever and irrespective of:
(i) any lack of validity or enforceability of such Letter of Credit, this Agreement or
any other Loan Document;
(ii) the existence of any claim, counterclaim, set-off, defense or other right that the
Company or any Subsidiary may have at any time against any beneficiary or any transferee of
such Letter of Credit (or any Person for whom any such beneficiary or any such transferee
may be acting), any Several L/C Agent, any Lender, the Administrative Agent or any other
Person, whether in connection with this Agreement, the transactions contemplated hereby or
by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated
transaction;
(iii) any draft, demand, certificate or other document presented under such Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a drawing under such
Letter of Credit;
(iv) any payment by the Lenders under such Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit
or any payment made by the Lenders under such Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any
beneficiary or any transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar Law now or hereafter in effect;
(v) any Several L/C Agent, any Lender, the Administrative Agent or any of their
respective branches or Affiliates being the beneficiary of such Letter of Credit;
(vi) any Lender honoring a drawing against any draft, demand, certificate or other
document presented under such Letter of Credit up to the amount available under such Letter
of Credit even if such draft, demand, certificate or other document claims an
Letter of Credit Agreement and Reimbursement Agreement
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amount in
excess of the amount available under such Letter of Credit;
(vii) any lien or security interest granted to, or in favor of, the Administrative
Agent, any Several L/C Agent or any of the Lenders as security for any of such reimbursement
obligations shall fail to be perfected;
(viii) the occurrence of any Default;
(ix) the existence of any proceedings of the type described in clause (g) or (h) of
Article VII with respect to the Company or any Subsidiary;
(x) whether such Letter of Credit is issued in support of any obligations of any
Subsidiary or any Subsidiary is an applicant for, or purports in any way to have any
liability for, such Letter of Credit; or
(xi) any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or any Subsidiary.
The Company shall promptly examine a copy of each Letter of Credit and each amendment thereto
requested by the Company that is delivered to it and, in the event of any claim of noncompliance
with the Companys (or, if applicable, any Subsidiarys) instructions or other irregularity, the
Company will notify the applicable Several L/C Agent (with respect to Several Letters of Credit)
within five Business Days of receipt of such Letter of Credit or amendment. The Company and each
Subsidiary party to any Letter of Credit Application shall be conclusively deemed to have waived
any such claim against the Several L/C Agents or the Lenders, as applicable, unless such notice is
given as aforesaid.
(f) Role of Several L/C Agent. Each Lender and the Company agree that, in paying any
drawing under a Letter of Credit, the applicable Several L/C Agent shall not have any
responsibility to obtain any document (other than any sight draft, certificates and documents
expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or
accuracy of any such document or the authority of the Person executing or delivering any such
document. Neither the applicable Several L/C Agent, any Related Party thereof nor any of the
respective correspondents, participants or assignees of such Several L/C Agent shall be liable to
any Lender for (i) any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in
the absence of gross negligence or wilful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any Letter of Credit Document. The Company and each Subsidiary
party to a Letter of Credit Application hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit; provided,
however, that this assumption is not intended to, and shall not, preclude the Companys
pursuing such rights and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. None of any Several L/C Agent, any Related Party nor any of the
respective correspondents, participants or assignees of such Several L/C Agent shall be liable or
responsible for any of the matters described in clauses (i) through (v) of Section 2.01(e);
provided, however, that, anything in such clauses to the contrary notwithstanding,
the Company (or, if applicable,
Letter of Credit Agreement and Reimbursement Agreement
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any Subsidiary) may have a claim against any Several L/C Agent, and
any Several L/C Agent may be liable to the Company or such Subsidiary, to the extent, but only to
the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the
Company or such Subsidiary which the Company or such Subsidiary proves were caused primarily by
such Several L/C Agents wilful misconduct or gross negligence or such Several L/C Agents wilful
failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a
sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, any Several L/C Agent may accept
documents that appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary, and such Several L/C Agent
shall not be responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective
for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent (given at the
request or with the consent of the Required Lenders), if, as of the Commitment Termination Date,
any Letter of Credit for any reason remains outstanding and partially or wholly undrawn, the
Company shall promptly Cash Collateralize the then Outstanding Amount of all L/C Obligations (in an
amount equal to 103% of such Outstanding Amount thereof plus any accrued and unpaid
interest thereon at such time). Article VII sets forth certain additional requirements to deliver
Cash Collateral hereunder. For purposes of this Agreement, Cash Collateralize means to
pledge to the Administrative Agent, for the benefit of the Lenders as collateral for the L/C
Obligations, deposit account balances denominated in Dollars and maintained with the Administrative
Agent pursuant to documentation in form and substance satisfactory to the Administrative Agent
(which documents are hereby consented to by the Lenders). The Company hereby grants to the
Administrative Agent, for the benefit of the Lenders, a security interest in all such deposit
accounts and all balances therein and all proceeds of the foregoing delivered by the Company as
Cash Collateral. Cash Collateral shall be maintained in a blocked deposit account at JPMCB.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable
Several L/C Agent, the Administrative Agent and the Company when a Letter of Credit is issued, the
rules of the ISP shall apply to each Letter of Credit unless, for regulatory purposes, the rules of
the UCP must apply.
(i) Conflict with Letter of Credit Documents. In the event of any conflict between
the terms of this Agreement and the terms of any Letter of Credit Document, the terms hereof shall
control.
(j) Letters of Credit Issued for Subsidiaries. Notwithstanding anything herein or in
any Letter of Credit Document to the contrary, the Company shall be solely and fully obligated to
pay all amounts owing with respect to each Letter of Credit, including each Unreimbursed Amount and
accrued interest thereon with respect to such Letter of Credit, whether or not such Letter of
Credit is issued in support of any obligations of any Subsidiary or any Subsidiary is party as an
applicant to the relevant Letter of Credit Application, all on the terms set forth herein. The
Company hereby acknowledges that the issuance of Letters of Credit at the request of any of its
Subsidiaries inures to the benefit of the Company, and that the
Letter of Credit Agreement and Reimbursement Agreement
- 31 -
|
|
Companys business derives
substantial benefits from the businesses of such Subsidiaries. |
(k) Limited Fronting Lenders. In the event that any Lender agrees (in its sole
discretion) to act as a Limited Fronting Lender for any Affected Lender or Non-NAIC Approved Bank
upon such terms and conditions as such parties may agree (including fees payable by such Affected
Lender or Non-NAIC Approved Bank to such Limited Fronting Lender) (such agreement, a Limited
Fronting Lender Agreement), the following provisions shall apply (in addition to any other
provisions hereof relating to Limited Fronting Lenders):
(i) upon the issuance of any Several Letter of Credit pursuant hereto, with respect to
any Affected Lender or Non-NAIC Approved Bank, as applicable, as a Participating L/C Issuer
under such Several Letter of Credit, each applicable Limited Fronting Lender, in reliance
upon the agreements of such Affected Lender or Non-NAIC Approved Bank, as applicable, as a
Participating L/C Issuer set forth in this Section, agrees (A) to issue through the
applicable Several L/C Agent, in addition to its own obligations as a Lender under such
Several Letter of Credit, severally such Several Letter of Credit in an amount equal to such
Affected Lenders or Non-NAIC Approved Banks, as applicable, Applicable Percentage of the
stated amount of such Several Letter of Credit (or the portion thereof for which such
Limited Fronting Lender has agreed to be a Limited Fronting Lender), and (B) to amend or
extend each Several Letter of Credit previously issued by it as a Limited Fronting Lender
for such Participating L/C Issuer; and
(ii) with respect to any Several Letter of Credit issued by a Limited Fronting Lender
pursuant to clause (i) above for a Participating L/C Issuer, such Participating L/C Issuer
agrees to purchase participations (as provided in Section 2.01(l)) in the obligations of
such Limited Fronting Lender under such Several Letter of Credit attributable to such
Participating L/C Issuer for which such Limited Fronting Lender has agreed to act as a
Limited Fronting Lender hereunder.
Each Lender that agrees to act as a Limited Fronting Lender for any other Lender shall promptly
notify the Administrative Agent (which shall promptly notify the Several L/C Agents) of such
agreement and of any termination or expiration of such agreement.
In the event that, pursuant to this Section 2.01(k), any other Lender agrees to act as a
Limited Fronting Lender for any Lender that becomes an Affected Lender or a Non-NAIC Approved Bank,
such other Lender shall receive such compensation therefor as such Affected Lender or Non-NAIC
Approved Bank and such other Lender may agree. Notwithstanding anything herein to the contrary, no
Lender shall have any obligation to agree to act hereunder as
a Limited Fronting Lender for any other Lender.
(l) Participations. In the event (i) any Participating L/C Issuer purchases a
participation in the Letter of Credit(s) of its Limited Fronting Lender pursuant to Section 2.01(k)
or (ii) any Lender acquires or is deemed to acquire a participations in the Letters of Credit of
the other Lenders pursuant to Section 2.01(b)(iv), then, without any further action on the part of
any party, (A) in the case of clause (i) above, such Limited Fronting Lender grants to such
Participating L/C Issuer, and such Participating L/C Issuer hereby acquires from such Limited
Letter of Credit Agreement and Reimbursement Agreement
- 32 -
Fronting Lender, a participation in such Limited Fronting Lenders Applicable Percentage of the
relevant Letters of Credit attributable to such Participating L/C Issuer for which such Limited
Fronting Lender has agreed to act as a Limited Fronting Lender hereunder and (B) in the case of
clause (ii) above, each such other Lender hereby grants to such Lender, and such Lender hereby
acquires from such other Lenders, a participation in that portion of each such other Lenders
Applicable Percentage of the relevant Letters of Credit to give effect to the purposes of the last
sentence of Section 2.01(b)(iv). Each Lender (including each Participating L/C Issuer) purchasing
a participation hereunder acknowledges and agrees that its obligation to acquire participations in
respect of Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or
the occurrence and continuance of a Default or reduction or termination of the Commitments. In
consideration and in furtherance of the foregoing, such Lender hereby absolutely and
unconditionally agrees to pay to the Administrative Agent, for account of the applicable Limited
Fronting Lender or such other Lenders, as applicable, an amount equal to the amount of each payment
made by such Limited Fronting Lender or other Lenders, as applicable, in respect of the portion of
such Letter of Credit in which such Lender holds a participation, promptly upon the request of such
Limited Fronting Lender or any such other Lender, as applicable, at any time from the time such
payment is made until such payment is reimbursed by the Company or at any time after any
reimbursement payment is required to be refunded to the Company for any reason. Such payment by
such Lender shall be made for account of the applicable Limited Fronting Lender or such other
Lenders, as applicable, without any offset, abatement, withholding or reduction whatsoever. To the
extent that any Lender has made payments pursuant to this paragraph to reimburse a Limited Fronting
Lender or any other Lenders in respect of any participation interests purchased hereunder in
respect of any Letter of Credit, promptly following receipt by the Administrative Agent of any
payment from the Company pursuant to Section 2.01(c)(i) in respect of such Letter of Credit, the
Administrative Agent shall distribute such payment to such Limited Fronting Lender and such Lender,
or to the other Lenders and such Lender, as applicable, in each case as their interests may appear.
Any payment made by a Lender in respect of its participation pursuant to this paragraph to
reimburse the applicable Limited Fronting Lender or any other Lenders for any payment made in any
respect of any drawing under a Letter of Credit shall not relieve the Company of its obligation to
reimburse the amount of such drawing.
SECTION 2.02. Termination and Reduction of Commitments.
(a) Scheduled Termination. Unless previously terminated, the Commitments shall
terminate on the Commitment Termination Date. Unless the Closing Date shall have occurred at or
prior to 3:00 p.m., New York City time, on March 31, 2011, this Agreement and the Commitments shall
automatically terminate at such time.
(b) Voluntary Termination or Reduction. The Company may at any time terminate the
Commitments and this Agreement or from time to time reduce, the Commitments; provided that
(i) each reduction of the Commitments shall be in an amount that is $10,000,000 or a larger
multiple of $1,000,000 and (ii) the Company shall not terminate or reduce the Commitments if the
total L/C Obligations would exceed the total Commitments. Notwithstanding the termination of the
Commitments, this Agreement shall not terminate, and the obligations of the Company under this
Agreement shall continue in full force and effect until
Letter of Credit Agreement and Reimbursement Agreement
- 33 -
such time as all Unreimbursed Amounts and
all fees and other amounts payable under this Agreement or any other Loan Document have been paid
in full and no Letters of Credit are outstanding.
(c) Notice of Voluntary Termination or Reduction. The Company shall notify the
Administrative Agent of any election to terminate or reduce the Commitments under paragraph (b) of
this Section at least two Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly following receipt of
any notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice
delivered by the Company pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Company may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made ratably among the
Lenders in accordance with their respective Commitments.
SECTION 2.03. Fees; Other Charges; Computations of Fees and Interest.
(a) Ticking Fees. The Company agrees to pay to the Administrative Agent for account
of each Lender a ticking fee, which shall accrue at a rate per annum equal to the Applicable Rate
on the amount of the Commitment of such Lender during the period from and including the Effective
Date to but excluding the earlier of the date on which such Commitment terminates and the Closing
Date. Accrued ticking fees shall be payable on each Quarterly Payment Date and on the earlier of
the Closing Date and the date on which the Commitment terminates, commencing on the first such date
to occur after the Effective Date.
(b) Commitment Fees. The Company agrees to pay to the Administrative Agent for
account of each Lender a commitment fee, which shall accrue at a rate per annum equal to the
Applicable Rate on the average daily unused amount of the Commitment of such Lender during the
period from and including the Closing Date to but excluding the earlier of the date such Commitment
terminates or the Commitment Termination Date. Accrued commitment fees shall be payable on each
Quarterly Payment Date and on the earlier of the date on which the
Commitment terminates and the Commitment Termination Date, commencing on the first such date
to occur after the Closing Date.
(c) Letter of Credit Fees. The Company shall pay to the Administrative Agent for
account of each Lender a Letter of Credit fee on such Lenders Applicable Percentage of the average
daily maximum amount available to be drawn under all Letter of Credits (including the Existing
Letters of Credit) outstanding from time to time at a rate per annum equal to the Applicable Rate
for Letter of Credit fees in effect from time to time. Letter of Credit fees accrued through and
including the last day of each March, June, September and December in each year shall be payable on
the immediately succeeding Quarterly Payment Date, commencing on the first such date to occur after
the Closing Date; provided that all such fees shall be payable on the earlier of the date
on which the Commitment terminates and the Commitment Termination Date, and any such fees accruing
thereafter (so long as any Letter of Credit or L/C Obligation remains outstanding) shall be payable
on demand. Notwithstanding anything to the contrary
Letter of Credit Agreement and Reimbursement Agreement
- 34 -
contained herein, while any Event of Default
under clause (g) or (h) of Article VII exists and, upon the request of the Required Lenders, while
any other Event of Default exists, all such Letter of Credit fees shall accrue at a rate per annum
equal to the Applicable Rate plus 2.00%.
(d) Documentary and Processing Charges. The Company shall pay directly to the
applicable Several L/C Agent for its own account the customary issuance, presentation, amendment
and other processing fees, and other standard and reasonable costs and charges, of such Several L/C
Agent relating to each Letter of Credit as from time to time in effect.
(e) Administrative Agent Fees. The Company agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately agreed upon between
the Company and the Administrative Agent.
(f) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, as applicable, to the
Person or Persons entitled thereto. Fees paid shall not be refundable under any circumstances.
(g) Default Interest. Except as otherwise expressly provided herein, if any amount
payable by the Company under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount
shall thereafter bear interest at a rate per annum at all times equal to the Default Rate to the
fullest extent permitted by applicable Laws.
(h) Computation. All fees payable under paragraph (a), (b) or (c) of this Section
shall be computed on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). All interest hereunder shall be
computed on the basis of a year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on 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 Alternate Base Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.04. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for account of, or credit extended by, any
Lender;
(ii) impose on any Lender any other condition affecting this Agreement;
(iii) subject any Recipient to any Taxes (other than (A) FATCA, (B) Indemnified Taxes
and (C) Other Connection Taxes on gross or net income, profits, franchise or revenues or
taxes in lieu thereof (including value-added or similar Taxes)) on
Letter of Credit Agreement and Reimbursement Agreement
- 35 -
its Letters of Credit,
participations therein, Commitments or other obligations hereunder, or its deposits,
reserves, other liabilities or capital attributable thereto; or
(iv) cause or deem Letters of Credit to be assets held by any Lender and/or as deposits
on its books;
and the result of any of the foregoing shall be to increase the cost to such Lenders or such other
Recipient of its obligation to issue or participate in, or of issuing, maintaining or participating
in, any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender
or such other Recipient hereunder, then the Company will pay to such Lender or such other
Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or
such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return on such Lenders
capital or on the capital of such Lenders holding company, if any, as a consequence of this
Agreement or the Letters of Credit issued (or participated in) by such Lender to a level below that
which such Lender or such Lenders holding company could have achieved but for such Change in Law
(taking into consideration such Lenders policies and the policies of such Lenders holding company
with respect to capital adequacy), then from time to time the Company will pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lenders holding company for
any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender setting forth the amount or
amounts necessary to compensate such Lender or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the Company and shall be
conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any
such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such Lenders right to
demand such compensation; provided that the Company shall not
be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than 180
days prior to the date that such Lender notifies the Company of the Change in Law giving rise to
such increased costs or reductions and of such Lenders intention to claim compensation therefor;
provided further that, if the Change in Law giving rise to such increased costs or
reductions is retroactive, then the 180-day period referred to above shall be extended to include
the period of retroactive effect thereof.
SECTION 2.05. Taxes.
(a) Withholding of Taxes; Gross-Up. Each payment by the Company under any Loan
Document shall be made without withholding for any Taxes, unless such withholding is required by
any Law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that
it is so required to withhold Taxes, then such Withholding Agent may so withhold and shall timely
pay the full amount of withheld Taxes to the relevant Governmental
Letter of Credit Agreement and Reimbursement Agreement
- 36 -
Authority in accordance with
applicable Law. If such Taxes are Indemnified Taxes, then the amount payable by the Company shall
be increased as necessary so that, net of such withholding (including such withholding applicable
to additional amounts payable under this Section), the applicable Recipient receives the amount it
would have received had no such withholding been made.
(b) Payment of Other Taxes by Company. The Company shall timely pay any Other Taxes
to the relevant Governmental Authority in accordance with applicable Law.
(c) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes by the Company to a Governmental Authority, the Company 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.
(d) Indemnification by Company. The Company shall indemnify each Recipient for any
Indemnified Taxes that are paid or payable by such Recipient in connection with any Loan Document
(including amounts payable under this Section 2.05(d)) and any reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. The indemnity under this Section
2.05(d) shall be paid within 10 days after the Recipient delivers to the Company a certificate
stating the amount of any Indemnified Taxes so payable by such Recipient and describing the basis
for the indemnification claim. Such certificate shall be conclusive of the amount so payable
absent manifest error. Such Recipient shall deliver a copy of such certificate to the
Administrative Agent. In the case of any Lender making a claim under this Section 2.05(d) on
behalf of any of its beneficial owners, an indemnity payment under this Section 2.05(d) shall be
due only to the extent that such Lender is able to establish that, with respect to the applicable
Indemnified Taxes, such beneficial owners supplied to the applicable Persons such properly
completed and executed documentation necessary to claim any applicable exemption from, or reduction
of, such Indemnified Taxes.
(e) Indemnification by Lenders. Each Lender shall severally indemnify the
Administrative Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent
that the Company has not already indemnified the Administrative Agent for such Indemnified Taxes
and without limiting the obligation of the Company to do so) and the Company for any Excluded
Taxes, in each case attributable to such Lender that are paid or payable by the Administrative
Agent or the Company (as applicable) in connection with any Loan Document and any reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes or Excluded Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 2.05(e) shall be paid within 10 days after the Administrative Agent or
the Company (as applicable) delivers to the applicable Lender a certificate stating the amount of
Taxes or Excluded Taxes so paid or payable by the Administrative Agent or the Company (as
applicable). Such certificate shall be conclusive of the amount so paid or payable absent manifest
error.
(f) Status of Lenders. (i) Any Lender that is entitled to an exemption from, or
reduction of, any applicable withholding Tax with respect to any payments under any Loan
Letter of Credit Agreement and Reimbursement Agreement
- 37 -
Document
shall deliver to the Company and the Administrative Agent, at the time such Lender becomes a Lender
hereunder or at times prescribed by Law or reasonably requested by the Company or the
Administrative Agent, such properly completed and executed documentation prescribed by Law or
reasonably requested by the Company or the Administrative Agent as will permit such payments to be
made without, or at a reduced rate of, withholding, unless a Change in Law prevents such Lender
from legally being able to complete, execute or deliver such form. In addition, any Lender, if
requested by the Company or the Administrative Agent, shall deliver such other documentation
prescribed by Law or reasonably requested by the Company or the Administrative Agent as will enable
the Company or the Administrative Agent to determine whether or not such Lender is subject to any
withholding (including backup withholding) or information reporting requirements. Upon the
reasonable request of the Company or the Administrative Agent, any Lender shall update any form or
certification previously delivered pursuant to this Section 2.05(f). If any form or certification
previously delivered pursuant to this Section expires or becomes obsolete or inaccurate in any
respect with respect to a Lender, such Lender shall promptly (and in any event within 10 days after
such expiration, obsolescence or inaccuracy) notify the Company and the Administrative Agent in
writing of such expiration, obsolescence or inaccuracy and update the form or certification if it
is legally eligible to do so.
(ii) Without limiting the generality of the foregoing, if the Company is a U.S. Person, any
Lender with respect to the Company shall, if it is legally eligible to do so, deliver to the
Company and the Administrative Agent (in such number of copies reasonably requested by the Company
and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto,
duly completed and executed copies of whichever of the following is applicable:
(A) in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such
Lender is exempt from U.S. Federal backup withholding tax;
(B) in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to
which the United States is a party (1) with respect to payments of interest under any Loan
Document, IRS Form W-8BEN establishing an exemption from,
or reduction of, U.S. Federal withholding Tax pursuant to the interest article of
such tax treaty and (2) with respect to any other applicable payments under any Loan
Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. Federal
withholding Tax pursuant to the business profits or other income article of such tax
treaty;
(C) in the case of a Non-U.S. Lender for whom payments under the Loan Documents
constitute income that is effectively connected with such Lenders conduct of a trade or
business in the United States, IRS Form W-8ECI;
(D) in the case of a Non-U.S. Lender claiming the benefits of the exemption for
portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN and (2) a
certificate substantially in the applicable form attached as part of Exhibit B (a U.S.
Tax Certificate) to the effect that such Lender is not (a) a bank within the meaning
of Section 881(c)(3)(A) of the Code, (b) a 10 percent shareholder of the Company within
the meaning of Section 881(c)(3)(B) of the Code (c) a controlled
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foreign corporation
described in Section 881(c)(3)(C) of the Code and (d) conducting a trade or business in the
United States with which the relevant interest payments are effectively connected;
(E) in the case of a Non-U.S. Lender that is not the beneficial owner of payments made
under this Agreement (including a partnership or a participating Lender) (1) an IRS Form
W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C),
(D) and (F) of this paragraph (f)(ii) that would be required of each such beneficial owner
or partner of such partnership if such beneficial owner or partner were a Lender;
provided, however, that if such Lender is a partnership and one or more of
its partners are claiming the exemption for portfolio interest under Section 881(c) of the
Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or
(F) any other form prescribed by Law as a basis for claiming exemption from, or a
reduction of, U.S. Federal withholding Tax together with such supplementary documentation
necessary to enable the Company or the Administrative Agent to determine the amount of Tax
(if any) required by Law to be withheld.
(iii) If a payment made to a Lender under any Loan Document would be subject to U.S. Federal
withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable
reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the
Code, as applicable), such Lender shall deliver to the Withholding Agent, at the time or times
prescribed by Law and at such time or times reasonably requested by the Withholding Agent, such
documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of
the Code) and such additional documentation reasonably requested by the Withholding Agent as may be
necessary for the Withholding Agent to comply with its obligations under FATCA, to determine that
such Lender has or has not complied with such Lenders obligations under FATCA or to determine the
amount to deduct and withhold from such payment. Solely for purposes of this Section 2.14(f)(iii),
FATCA shall include any amendments made to FATCA after the date of this Agreement.
(g) Treatment of Certain Refunds. If any Lender or the Administrative Agent
reasonably determines that it has received a refund, in cash or applied as an offset against other
cash tax liability, of any Taxes as to which it has been indemnified pursuant to this Section
(including additional amounts paid pursuant to this Section), such indemnified party shall pay to
the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments
made under this Section with respect to the Taxes giving rise to such refund), net of all
out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other
than any interest paid by the relevant Governmental Authority with respect to such refund). Such
indemnifying party, upon the request of such indemnified party, shall repay to such indemnified
party the amount paid to such indemnifying party pursuant to the previous sentence (plus any
interest imposed by the relevant Governmental Authority) in the event such indemnified party is
required to repay such refund to such Governmental Authority. Notwithstanding anything to the
contrary in this Section 2.05(g), in no event will any indemnified party be required to pay any
amount to any indemnifying party pursuant to this Section 2.05(g) to the extent such payment would
place such indemnified party in a less
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favorable position (on a net after-Tax basis) than such
indemnified party would have been in if the indemnification payments or additional amounts giving
rise to such refund had never been paid. This Section 2.05(g) shall not be construed to require
any indemnified party to make available its Tax returns (or any other information relating to its
Taxes which it deems confidential) to the indemnifying party or any other Person.
SECTION 2.06. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Payments by Company. The Company shall make each payment required to be made by
it hereunder prior to 1:00 p.m. (or, in the case of Section 2.01(c), 2:00 p.m.), New York City
time, on the date when due, 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 the
Administrative Agents Office, except that payments pursuant to Sections 2.04, 2.05 and 9.03 shall
be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for 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) Application of Insufficient Payments. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all Unreimbursed Amounts,
interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and
fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
of interest and fees then due to such parties, and (ii) second, to pay the Unreimbursed Amounts
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts
thereof then due to such parties.
(c) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
set-off or counterclaim or otherwise, obtain payment in respect of any Unreimbursed Amount or
interest thereon resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of the Unreimbursed Amount and interest thereon then due 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 Unreimbursed Amounts of other Lenders to the extent
necessary so that the benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of the Unreimbursed Amounts and accrued interest thereon;
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 Company 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 Commitments or Letters
of Credit to any assignee or participant, other than to the Company or any Subsidiary or Affiliate
thereof (as to which the provisions of this paragraph shall apply). The Company consents to the
foregoing and agrees, to the extent it may effectively do so under
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applicable Law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise against the Company
rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Company in the amount of such participation.
(d) Presumptions of Payment. Unless the Administrative Agent shall have received
notice (which notice shall be effective upon receipt) from the Company prior to the date on which
any payment is due to the Administrative Agent for account of the Lenders hereunder that the
Company will not make such payment, the Administrative Agent may assume that the Company 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 Company 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) Certain Deductions by the Administrative Agent. If any Lender shall fail to make
any payment required to be made by it pursuant to Section 2.01(c), 2.06(d) or 9.03(c), then the
Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i)
apply any amounts thereafter received by the Administrative Agent for the account of such Lender
and for the benefit of the Administrative Agent to satisfy such Lenders obligations under such
Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts
in a segregated account as cash collateral for, and application to, any future funding obligations
of such Lender under such Sections, in the case of each of clauses (i) and (ii) above, in any order
as determined by the Administrative Agent in its discretion.
SECTION 2.07. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation
under Section 2.04, or if the Company is required to pay any additional amount to any Lender or any
Governmental Authority for account of any Lender pursuant to Section 2.05, then such Lender shall
use reasonable efforts to designate a different lending office for funding or booking its Letters
of Credit or obligations hereunder or thereunder or to assign its rights and obligations hereunder
to another of its offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.04 or
2.05, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) Replacement of Lenders. If (i) any Lender requests compensation under Section
2.04, (ii) the Company is required to pay any additional amount to any Lender or any Governmental
Authority for account of any Lender pursuant to Section 2.05 or (iii) any Lender becomes an
Affected Lender, a Non-NAIC Approved or a Defaulting Lender, then the Company may, at its sole
expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse, all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which
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assignee may be another Lender,
if a Lender accepts such assignment); provided that (A) such assignment shall be effected
in accordance with and subject to the restrictions contained in Section 9.04 (including that such
assignee shall be a NAIC Approved Bank or any other Person which shall have in effect a Confirming
Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person or Lender, as
applicable, which is a NAIC Approved Bank) and such assignee (if not a Lender) shall have been
approved by the Administrative Agent (which approval shall not unreasonably be withheld), (B) such
Lender shall have received payment of an amount equal to the outstanding Unreimbursed Amounts owing
to such Lender, accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such Unreimbursed Amounts and accrued interest and
fees) or the Company (in the case of all other amounts) (C) with respect to an assignment as a
result of clause (iii) above, the assignment fee shall be paid to the Administrative Agent by the
Company and (D) in the case of any such assignment resulting from a claim for compensation under
Section 2.04 or payments required to be made pursuant to Section 2.05, such assignment will result
in a reduction in such compensation or payments. 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 Company to require such assignment and delegation cease to apply
(including, in the case of clause (iii) above with respect to any Non-NAIC Approved Bank, if, prior
thereto, such Lender complies with Section 2.09(a)).
SECTION 2.08. Increase in Commitments. The Company may, at any time after the Closing Date by notice to the Administrative Agent,
propose an increase in the total Commitments hereunder (each such proposed increase being a
Commitment Increase) either by having a Lender increase its Commitment then in effect
(each an Increasing Lender) or by having a Person which is not then a Lender become a
party hereto as a Lender with a new Commitment hereunder (each an Assuming Lender), in
each case, with the approval of the Administrative Agent (not to be
unreasonably withheld); provided that each Assuming Lender shall be a NAIC Approved
Bank or any other Person which shall have in effect a Confirming Bank Agreement or Limited Fronting
Lender Agreement, in each case, with a Person or Lender, as applicable, which is a NAIC Approved
Bank. Such notice shall specify (i) the name of each Increasing Lender and/or Assuming Lender, as
applicable, (ii) the amount of the Commitment Increase and the portion thereof being committed to
by each such Increasing Lender or Assuming Lender and (iii) the date on which such Commitment
Increase is to be effective (a Commitment Increase Date) (which shall be a Business Day
at least five Business Days after delivery of such notice and 30 days prior to the Commitment
Termination Date).
Each Commitment Increase shall be subject to the following additional conditions:
(i) unless the Administrative Agent otherwise agrees, the Commitment of any Assuming
Lender as part of any Commitment Increase shall be in a minimum amount of at least
$25,000,000;
(ii) unless the Administrative Agent otherwise agrees, each Commitment Increase shall be
in an amount of at least $25,000,000;
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(iii) immediately after giving effect to any Commitment Increase, the total Commitments
hereunder shall not exceed $2,000,000,000;
(iv) no Default has occurred and is continuing on the relevant Commitment Increase
Date or shall result from any Commitment Increase; and
(v) the representations and warranties of the Company set forth in this Agreement and
the other Loan Documents shall be true and correct in all material respects (or, in the case
of such representations and warranties qualified as to materiality, in all respects) on and
as of the relevant Commitment Increase Date as if made on and as of such date (or, if any
such representation or warranty is expressly stated to have been made as of a specific date,
as of such specific date).
Each Commitment Increase (and the increase of the Commitment of each Increasing Lender and/or
the new Commitment of each Assuming Lender, as applicable, resulting therefrom) shall become
effective as of the relevant Commitment Increase Date upon receipt by the Administrative Agent, on
or prior to 9:00 a.m., New York City time, on such Commitment Increase Date, of (a) a certificate
of a Responsible Officer of the Company stating that the conditions with respect to such Commitment
Increase under this Section have been satisfied and (b) an agreement, in form and substance
satisfactory to the Company and the Administrative Agent, pursuant to which, effective as of such
Commitment Increase Date, each such Increasing Lender and/or such Assuming Lender, as applicable,
shall provide its Commitment (or an increase of its Commitment, as applicable), duly executed by
each such Lender and the Company and acknowledged by the Administrative Agent. Upon the
Administrative Agents receipt of a fully executed agreement from each such Increasing Lender
and/or Assuming Lender, together with such certificate of such Responsible Officer, the
Administrative Agent shall record the information contained in such agreement in the Register
and give prompt notice of the relevant Commitment Increase to the Company and the Lenders
(including, if applicable, each Assuming Lender).
Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree
to increase its Commitment hereunder and any election to do so shall be in the sole discretion of
such Lender.
SECTION 2.09. Non-NAIC Approved Banks. If, at any time from and after the Closing Date, any Lender is not or ceases to be a NAIC
Approved Bank, such Lender shall promptly notify the Company and the Administrative Agent thereof.
Each Lender agrees to use commercially reasonable efforts, at all times from and after the Closing
Date, (a) to be a NAIC Approved Bank or (b) if such Lender is not or ceases to be a NAIC Approved
Bank, either (i) to maintain in effect a Confirming Bank Agreement with a Confirming Bank (which
Confirming Bank (if not a Lender), prior to entering in such Confirming Bank Agreement, shall be
subject to the prior written consent of the Company and the Administrative Agent (such consent, in
each case, not to be unreasonably withheld) upon such terms and conditions as such parties may
agree or (ii) as provided in Section 2.01(k), to agree with another Lender which is a NAIC Approved
Bank that such Lender shall (in its sole discretion) act as the Limited Fronting Lender for such
Lender, in each case with respect to any Several Letters of Credit which are outstanding at the
time such Lender becomes a Non-NAIC Approved Bank and/or are issued during the period that
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such
Lender is a Non-NAIC Approved Bank. In the event that any Person (including any other Lender)
agrees to act as a Confirming Bank for any Lender which is a Non-NAIC Approved Bank, such other
Lender shall receive such compensation therefor as such Non-NAIC Approved Bank and such Person may
agree. If any Lender shall enter into a Confirming Bank Agreement hereunder at any time, it shall
promptly furnish a copy thereof to the Company and the Administrative Agent and, thereafter,
promptly notify the Company and the Administrative Agent of the termination or expiration of such
Confirming Bank Agreement. Notwithstanding anything herein to the contrary, no Lender shall have
any obligation to agree to act hereunder as a Confirming Bank for any other Lender.
SECTION 2.10. Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a
Defaulting Lender, then the following provisions shall apply for so long as such Lender is a
Defaulting Lender:
(a) such Defaulting Lender shall not be entitled to receive any ticking fee or commitment fee
pursuant to Section 2.03(a) or (b), respectively, for any period during which it is a Defaulting
Lender (and the Company shall not be required to pay any such fee that would otherwise have been
required to have been paid to such Defaulting Lender);
(b) the Commitment of, and the portion of the L/C Obligations held or deemed held by, such
Defaulting Lender shall not be included in determining whether all Lenders or the Required Lenders
have taken or may take any action hereunder (including any consent to any amendment, waiver or
other modification pursuant to Section 9.02); except that (i) the Commitment of any Defaulting
Lender may not be increased or extended without the
consent of such Lender and (ii) any waiver, amendment or other modification requiring the
consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more
adversely than other affected Lenders shall require the consent of such Defaulting Lender; and
(c) with respect to any Several Letter of Credit and/or the L/C Obligations of such Defaulting
Lender with respect thereto,
(i) such Defaulting Lender shall not be entitled to receive any Letter of Credit fee
pursuant to Section 2.03(c) for any period during which it is a Defaulting Lender (and
(except as provided in clause (c)(iii) below) the Company shall not be required to pay any
such fee that would otherwise have been required to have been paid to such Defaulting
Lender);
(ii) subject to the condition that no Default has occurred and is continuing, with
respect to any Several Letter of Credit outstanding at the time such Lender becomes a
Defaulting Lender (other than any Several Letter of Credit with respect to which another
Lender has agreed to act as the Limited Fronting Lender for such Defaulting Lender), with
the consent of the beneficiary thereunder to the extent required by the terms thereof or
under applicable Law, (i) all or any portion of the L/C Obligations held by such Defaulting
Lender shall be reallocated among the Non-Defaulting Lenders in accordance with their
respective Applicable Percentages but only to the extent that (A) the sum of the aggregate
Outstanding Amount of the L/C Obligations held by Non-
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Defaulting Lenders plus the
Outstanding Amount of the L/C Obligations held by such Defaulting Lender shall not exceed
the total Commitments of the Non-Defaulting Lenders (except as provided in Section 2.01(k)
for Limited Fronting Lenders) and (B) the aggregate Outstanding Amount of the L/C
Obligations held by each Non-Defaulting Lender shall not exceed the Commitment of such
Non-Defaulting Lender (except as provided in Section 2.01(k) if such Non-Defaulting Lender
is a Limited Fronting Lender) and (ii) each such Several Letter of Credit shall be amended
to specify the Non-Defaulting Lenders that are parties to such Several Letter of Credit,
after giving effect to such event, and such Non-Defaulting Lenders respective Applicable
Percentages with respect thereto as of the effective date of such amendment (and,
notwithstanding anything herein to the contrary, such Defaulting Lender shall have no
obligation under each such Several Letter of Credit to the extent such L/C Obligations in
respect thereof are so allocated);
(iii) if the L/C Obligations held by the Non-Defaulting Lenders are reallocated with
respect to any Several Letter of Credit pursuant to clause (c)(ii) above, then the Letter of
Credit fees payable to the Lenders with respect to such Several Letter of Credit pursuant to
Section 2.03(c) shall be adjusted in accordance with such Non-Defaulting Lenders Applicable
Percentages; and
(iv) so long as such Lender remains a Defaulting Lender, the L/C Obligations of the
Lenders in respect of any Several Letter of Credit requested to be issued hereunder shall be
allocated among Non-Defaulting Lenders in a manner consistent with clause
(c)(ii) above (and, notwithstanding anything herein to the contrary, such Defaulting
Lender shall have no obligation under each such Several Letter of Credit to the extent such
L/C Obligations in respect thereof are so allocated).
In the event that the Administrative Agent, the applicable Several L/C Agent and the Company
each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to
be a Defaulting Lender, then on such date, (A) to the extent the L/C Obligations held by the
Non-Defaulting Lenders were theretofore reallocated with respect to any Several Letter of Credit
pursuant to clause (c)(ii) or (iv) above, all adjustments shall be made to such Several Letters of
Credit consistent with Section 2.01(b)(iv) (including amendments to each such Several Letter of
Credit and/or, if applicable, purchases at par by such Lender of the Unreimbursed Amounts then
outstanding (if any) of the other Lenders thereunder) as the Administrative Agent shall determine
may be necessary in order for such Lender to hold such L/C Obligations in accordance with its
Applicable Percentage; and (B) if the L/C Obligations held by the Non-Defaulting Lenders were not
theretofore reallocated with respect to such Several Letter of Credit pursuant to clause (c)(ii)
above, but instead the face amount of any such Several Letter of Credit was increased or a new
Several Letter of Credit was issued hereunder in favor of the beneficiary of such Several Letter of
Credit in order to provide such beneficiary with an aggregate undrawn face amount of Letters of
Credit from the Non-Defaulting Lenders in the amount required by such beneficiary, the amount of
such Several Letter of Credit or new Several Letter of Credit shall be amended to decrease the
amount thereof, or the Company shall arrange for such new Letter of Credit to be surrendered by
such beneficiary to such Several L/C Agent, in order to reflect the inclusion of such Lenders
Commitment, whereupon such Lender shall no
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longer be a Defaulting Lender.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Company and its Designated Subsidiaries (a) is duly organized, validly existing
and in good standing under the Laws of the jurisdiction of its organization, (b) has all requisite
power and authority to (i) own or lease its assets and carry on its business and (ii) execute,
deliver and perform its obligations under the Loan Documents to which it is a party and (c) is duly
qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction
where its ownership, lease or operation of properties or the conduct of its business requires such
qualification or license; except in each case referred to in clause (b)(i) or (c) above, to the
extent that failure to do so could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.02. Authorization; Enforceability. The execution, delivery and performance by the Company of each Loan Document to which it is
a party have been duly authorized by all necessary corporate or other
organizational action. Each Loan Document to which the Company is a party has been duly
executed and delivered by it and constitutes a legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other Laws affecting creditors rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Authorizations. No approval, consent, exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, the Company of this Agreement or
any other Loan Document, except such as have been obtained or made and are in full force and
effect.
SECTION 3.04. No Contravention. The execution, delivery and performance by the Company of each Loan Document to which it is
a party do not and will not (a) contravene the terms of any of the Companys Organization
Documents; (b) conflict with or result in any breach or contravention of, or the creation of any
Lien under, or require any payment to be made under (i) any Contractual Obligation to which the
Company is a party or affecting the Company or the properties of the Company or any of its
Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which the Company or its property is subject; or (c) violate any Law, except, in
the case of clauses (b) and (c) above, to the extent such violations or defaults, individually or
in the aggregate, could not reasonably be expected to result in a Material Adverse Change.
SECTION 3.05. Financial Statements; No Material Adverse Change.
(a) Financial Statements. The Company has heretofore furnished to the Lenders the
Combined Financial Statements (i) as of and for the fiscal years ended
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December 31, 2008 and
December 31, 2009, reported on by PricewaterhouseCoopers LLP, independent public accountants and
(ii) as of and for the fiscal quarters and the portions of the fiscal year ended March 31, 2010 and
June 30, 2010 certified by the Companys chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of operations and cash
flows of the managed businesses of the Company and its Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the absence of footnotes
in the case of the statements referred to in clause (ii) above.
(b) No Material Adverse Change. Since December 31, 2009, there has been no event,
development or circumstance that has had or could reasonably be expected to result in a Material
Adverse Change (except for Disclosed Matters).
SECTION 3.06. Properties. Each of the Company and its Designated Subsidiaries has good title to, or valid leasehold
interests in, all its real and personal property material to its business, subject only to Liens
permitted by Section 6.02 and, except for defects in title or leasehold interests that,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
SECTION 3.07. Litigation and Environmental Matters.
(a) Actions, Suits and Proceedings. Except for Disclosed Matters and Disclosed Tax
Matters, there are no actions, suits, proceedings, claims, disputes or investigations pending or,
to the knowledge of the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority, by or against the Company or any of its Designated Subsidiaries or against
any of their properties or revenues that (i) either individually or in the aggregate, if determined
adversely, could reasonably be expected to result in a Material Adverse Change or (ii) purport to
affect or pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby or thereby.
(b) Environmental Matters. Except for Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Change, neither the Company nor any of its Designated Subsidiaries (i)
has failed to comply with any Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received written notice of any claim with respect to any
Environmental Liability or (iv) knows of any conditions or circumstances that could reasonably be
expected to result in any Environmental Liability.
(c) Change in Disclosed Matters. Since November 5, 2010, there has been no change in
the status of Disclosed Matters and Disclosed Tax Matters that, individually or in the aggregate,
has resulted in, or could reasonably be expected to result in, a Material Adverse Change.
SECTION 3.08. Compliance with Laws. Each of the Company and its Designated Subsidiaries is in compliance with all Laws
(including any Environmental Laws) and orders of any Governmental Authority applicable to it or its
property, except where the failure to
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do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Change.
SECTION 3.09. No Default. Neither the Company nor any of its Designated Subsidiaries is in default under or with
respect to any Contractual Obligation that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Change. No Default has occurred and is continuing or
would result from the consummation of the transactions contemplated by this Agreement or any other
Loan Document.
SECTION 3.10. Investment Company Status. The Company is not an investment company as defined in, or subject to regulation under,
the Investment Company Act of 1940.
SECTION 3.11. Taxes. Except for Disclosed Tax Matters, each of the Company and its Designated Subsidiaries has
timely filed or caused to be filed all Federal income tax returns and all other material tax
returns and reports required to have been filed and has paid or caused to be paid all taxes
required to have been paid by it, except (a) taxes for which such Person has set aside on its books
adequate reserves or (b) to the extent that the failure to do so could not reasonably be expected
to result in a Material Adverse Change.
SECTION 3.12. ERISA. (a) Each of the Company and its ERISA Affiliates is in compliance in all material respects
with the applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder as they relate to each Plan. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA Events, could
reasonably be expected to result in material liability of the Company or any of its ERISA
Affiliates. The present value of all benefit liabilities of all underfunded Plans (determined
based on the projected benefit obligation with respect to such underfunded Plans based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the last annual valuation dates applicable thereto, exceed by more than $150,000,000 the fair
market value of the assets of all such underfunded Plans.
(b) Each Foreign Pension Plan is in compliance in all material respects with all requirements
of Law applicable thereto and the respective requirements of the governing documents for such plan.
With respect to each Foreign Pension Plan, none of the Company, its Affiliates or any of their
respective directors, officers, employees or agents has engaged in a transaction that would subject
the Company or any Subsidiary, directly or indirectly, to a tax or civil penalty that could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Change.
With respect to each Foreign Pension Plan, reserves have been established in the financial
statements furnished to the Lender in respect of any unfunded liabilities in accordance with
applicable Law and prudent business practice or, where required, in accordance with ordinary
accounting practices in the jurisdiction in which such Foreign Pension Plan is maintained. The
aggregate unfunded liabilities with respect to such Foreign Pension Plans could not reasonably be
expected to result in a Material Adverse Change. The present value of the aggregate accumulated
benefit liabilities of all such Foreign Pension Plans (based on those assumptions used to fund each
such Foreign Pension Plan) did not, as of the last annual valuation date applicable thereto, exceed
by more than $450,000,000 the fair market value of the assets held in trust under all such Foreign
Pension Plans.
Letter of Credit Agreement and Reimbursement Agreement
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SECTION 3.13. Disclosure. None of the reports, financial statements, certificates or other information furnished by
or on behalf of the Company or any of its Subsidiaries to the Administrative Agent
or any Lender in connection with the negotiation of this Agreement and the other Loan
Documents or delivered hereunder or thereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were made, not
misleading as of the date made; provided that, with respect to projected or pro forma
financial information, the Company represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at the time furnished (it being understood that
such projections and forecasts are subject to uncertainties and contingencies and no assurances can
be given that such projections or forecasts will be realized).
SECTION 3.14. Margin Regulations. The Company is not engaged principally, or as one of its important activities, in the
business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying
or carrying Margin Stock, and no Letter of Credit will be used to buy or carry any Margin Stock.
Not more than 25% of the value of the assets of the Company shall consist of Margin Stock.
SECTION 3.15. Sanctioned Persons. None of the Company or any Subsidiary nor, to the knowledge of the Company, any director or
officer of the Company or any Subsidiary is currently the target of any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (OFAC); and the
Company will not directly or indirectly use any Letter of Credit for the purpose of financing the
activities of any Person currently subject to any U.S. sanctions administered by OFAC.
ARTICLE IV
CONDITIONS
SECTION 4.01. Effective Date. This Agreement (other than Articles V and VI, except for such provisions thereof that shall
be effective from and after the Effective Date as expressly set forth in the introductory language
of Article V) shall become effective on the date (which shall not be later than December 31, 2010)
(the Effective Date) on which each of the following conditions shall be satisfied to the
satisfaction of the Administrative Agent (or waived in accordance with Section 9.02):
(a) Executed Counterparts of this Agreement. The Administrative Agent shall
have received from each of the Company, the Lenders and the Administrative Agent a
counterpart of this Agreement signed on behalf of such party (or written evidence
satisfactory to the Administrative Agent, which may include telecopy or electronic
transmission of a signed signature page to this Agreement, that such party has signed a
counterpart of this Agreement).
(b) Financial Statements. The Company shall have furnished to the
Administrative Agent and the Lenders draft Combined Financial Statements as of and for the
fiscal quarter and the portion of the fiscal year ended September 30, 2010.
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(c) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole (except for Disclosed
Matters).
(d) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Company,
the authorization of the Transactions and any other legal matters relating to the Company,
the Loan Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent.
(e) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by a Responsible Officer of the Company,
confirming satisfaction of each of the conditions set forth in this Section.
(f) Fees and Expenses. The Company shall have paid to the Administrative Agent
for the account of the respective person or persons entitled thereto all such fees and
expenses as it shall have agreed in writing to pay to the Agents, the Lenders and the Joint
Lead Arrangers in connection herewith (including (i) the upfront fees then payable by the
Company to the Lenders and (ii) the reasonable fees and expenses of Milbank, Tweed, Hadley &
McCloy LLP, special New York counsel to the Administrative Agent) that are due and payable
on or prior to the Effective Date (and, with respect to such expenses, for which invoices
have been presented to the Company prior to the Effective Date).
(g) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent shall reasonably request.
The Administrative Agent shall notify the Company and the Lenders of the Effective Date, and
such notice shall be conclusive and binding.
Notwithstanding anything herein to the contrary, the obligations of the Lenders to issue
Letters of Credit hereunder shall not become effective, and no Letters of Credit shall be issued or
deemed issued hereunder, unless and until the conditions specified in Section 4.02 shall be
satisfied or waived in accordance therewith.
SECTION 4.02. Closing Date. The obligations of the Lenders to issue Letters of Credit hereunder and the provisions of
Articles V and VI (to the extent such provisions shall not have become effective as of the
Effective Date pursuant to Section 4.01) shall become effective on the date (which shall not be
later than March 31, 2011) (the Closing Date) on which each of the following
conditions shall be satisfied to the satisfaction of the Administrative Agent (or waived in
accordance with Section 9.02):
(a) Effective Date. The Effective Date shall have occurred.
Letter of Credit Agreement and Reimbursement Agreement
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(b) Repayment of Amounts under FRBNY Credit Agreement. The Administrative
Agent shall have received evidence that (i) the principal of and interest on outstanding
loans, and all accrued fees and all other amounts owing, under the Credit Agreement dated as
of September 22, 2008 between AIG and Federal Reserve Bank of New York, as amended, shall
have been (or shall be simultaneously) paid in full, (ii) all commitments to extend credit
thereunder shall have been terminated and (iii) all Guarantees in respect of, and all Liens
securing, any such Indebtedness and any other obligations thereunder shall have been
released (except for any provisions of the FRBNY Credit Agreement relating to indemnities
and tax gross-up that expressly provide for the survival of obligations thereunder, which
shall continue in effect).
(c) Financial Statements. To the extent available prior to the Closing Date,
the Company shall have furnished to the Administrative Agent and the Lenders (i) the
unaudited Combined Financial Statements as of and for the fiscal quarter and the portion of
the fiscal year ended September 30, 2010 certified by the Companys chief financial officer
and/or (ii) the audited Combined Financial Statements as of and for the fiscal year ended
December 31, 2010, reported on by PricewaterhouseCoopers LLP, independent public
accountants, in each case in accordance with Section 5.01(a) or (b), as applicable.
(d) No Material Adverse Change. Since December 31, 2009, there has been no
event, development or circumstance that has had or could reasonably be expected to have a
material adverse effect on the business, operations, properties or condition (financial or
otherwise) of the Company and its Subsidiaries taken as a whole (except for Disclosed
Matters).
(e) Financial Strength Ratings. The financial strength ratings (and the
outlook thereof) for National Union Fire Insurance Company of Pittsburgh, Pa. and American
Home Assurance Company from each of S&P and Moodys as in effect on the Closing Date shall
not be lower than such ratings (and the outlook thereof) from such rating agencies as in
effect on October 15, 2010 and as set forth on Schedule 4.02(e); provided,
however, that the condition in this Section 4.02(e) shall be satisfied if the
financial strength ratings in effect on the Closing Date for either Moodys or S&P (but not
both Moodys and S&P) for one or more of the Companys Designated Insurance Subsidiaries
shall fall not more than one rating level.
(f) Bringdown of Representations and Warranties; and Absence of Default. (i)
The representations and warranties of the Company set forth in this Agreement and the other
Loan Documents shall be true and correct in all material respects (or, in the case of any
such representations and warranties qualified as to materiality, in all respects) on and as
of the Closing Date (or, if any such representation or warranty is expressly stated to have
been made as of a specified date, as of such specified date); and (ii) as of the Closing
Date, no Default shall have occurred and be continuing.
(g) Officers Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Responsible Officer of the Company,
confirming compliance with the conditions set forth in this Section and the financial
Letter of Credit Agreement and Reimbursement Agreement
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strength ratings for National Union Fire Insurance Company of Pittsburgh, Pa. and American
Home Assurance Company from each of S&P and Moodys as then in effect.
(h) Corporate Documents; Incumbency Certificates. The Administrative Agent
shall have received such documents and certificates as the Administrative Agent may
reasonably request relating to the organization, existence and good standing of the Company,
the authorization of the Transactions and any other legal matters relating to the Company,
the Loan Documents or the Transactions, all in form and substance satisfactory to the
Administrative Agent.
(i) Opinion of Counsel to Company. The Administrative Agent shall have
received one or more favorable written opinions (addressed to the Administrative Agent and
the Lenders and dated the Closing Date) of counsel to the Company (which may include the
general counsel or other internal counsel of the Company satisfactory to the Administrative
Agent), in form and substance reasonably satisfactory to the Agents (and the Company hereby
instructs such counsel to deliver such opinion(s)).
(j) Opinion of Special New York Counsel to Administrative Agent. The
Administrative Agent shall have received an opinion (addressed to the Administrative Agent
and the Lenders and dated the Closing Date) of Milbank, Tweed, Hadley & McCloy LLP, special
New York counsel to JPMCB as Administrative Agent, in form and substance satisfactory to the
Agents (and JPMCB hereby instructs such counsel to deliver such opinion).
(k) Other Documents. The Administrative Agent shall have received such other
documents as the Administrative Agent may reasonably request.
(l) Fees and Expenses. The Company shall have paid to the Administrative Agent
on the Closing Date for the account of the respective person or persons entitled thereto all
such fees and expenses as it shall have agreed in writing to pay to the Agents, the Lenders
and the Joint Lead Arrangers in connection herewith (including (i) the upfront fees then
payable by the Company to the Lenders and (ii) the reasonable fees and expenses of Milbank,
Tweed, Hadley & McCloy LLP, special New York counsel to the Administrative Agent) that are
due and payable on or prior to the Closing Date (and, with respect to such expenses, for
which invoices have been presented to the Company prior to the Closing Date).
The Administrative Agent shall notify the Company and the Lenders of the Closing Date, and
such notice shall be conclusive and binding.
SECTION 4.03. Each Credit Event. The obligation of each Lender to issue, amend or (subject to Section 2.01(b)(v)) extend any
Letter of Credit is subject to the satisfaction of the following conditions (in addition
to the satisfaction of the conditions under Section 4.02 in the case of the issuance of the
initial Letters of Credit hereunder):
(a) the representations and warranties of the Company set forth in this Agreement and
the other Loan Documents (excluding, except in the case of any Letter of Credit issuance on
the Closing Date, those representations and warranties contained in
Letter of Credit Agreement and Reimbursement Agreement
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Section 3.05(b) (but
only as to clauses (a) and (b) of the definition of Material Adverse Change) and Section
3.07(a) and (c)) shall be true and correct in all material respects (or, in the case of any
such representations and warranties qualified as to materiality, in all respects) on and as
of the date of such issuance, amendment or extension (or, if any such representation or
warranty is expressly stated to have been made as of a specified date, as of such specified
date); and
(b) at the time of and immediately after giving effect to such issuance, amendment or
extension, no Default shall have occurred and be continuing.
Each issuance, amendment or extension of a Letter of Credit shall be deemed to constitute a
representation and warranty by the Company on the date thereof as to the matters specified in
clauses (a) and (b) of the preceding sentence.
ARTICLE V
AFFIRMATIVE COVENANTS
From the Closing Date (except, in the case of Sections 5.01 and 5.02, from the Effective Date)
and until the Commitments have expired or been terminated, the Unreimbursed Amounts and interest
thereon and all fees payable hereunder shall have been paid in full and all Letters of Credit have
expired or terminated, the Company covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Company will furnish to the Administrative Agent (which shall promptly provide to each
Lender):
(i) within 120 days after the end of each fiscal year of the Company, the audited
Combined Financial Statements, in each case as of the end of and for such fiscal year,
setting forth in each case in comparative form the figures for (or, in the case of the
balance sheet, as of the end of) the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of recognized national
standing (without a going concern or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect that such financial
statements present fairly in all material respects the financial condition and results of
operations of the managed businesses of the Company and its Subsidiaries in accordance with
GAAP consistently applied;
(b) within 90 days after the end of each of the first three fiscal quarters of each
fiscal year of the Company (or, in the case of the fiscal quarter and the portion of the
fiscal year ended September 30, 2010, not later than January 15, 2011), the unaudited
Combined Financial Statements, as of the end of and for such fiscal quarter, setting forth
in each case in comparative form the figures for (or, in the case of the balance sheet, as
of the end of) the corresponding period or periods of the previous fiscal year, in each case
certified by a Financial Officer of the Company as presenting fairly in all material
respects the financial condition and results of operations of the managed businesses of
Letter of Credit Agreement and Reimbursement Agreement
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Company and its Subsidiaries in accordance with GAAP consistently applied, subject to normal
year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under paragraph (a) or (b)
above, a certificate of a Financial Officer of the Company in form reasonably satisfactory
to the Administrative Agent (i) certifying that no Default has occurred or, if such a
Default has occurred, specifying the nature and extent thereof and any corrective action
taken or proposed to be taken with respect thereto, (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the
covenants contained in Section 6.09 and (iii) specifying any changes to the list of
Designated Subsidiaries and Material Subsidiaries as of the last day of the fiscal period to
which such financial statements relate;
(d) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Company or any Subsidiary with
the SEC, any Governmental Authority succeeding to any or all of the functions of the SEC or
any national securities exchange, as the case may be;
(e) as soon as available but not later than 120 days after the close of each fiscal
year of each Designated Insurance Subsidiary (or, if earlier, within five Business Days
after the Company shall have filed such financial statements with the applicable
Governmental Authority), copies of the unaudited Annual Statement of such Designated
Insurance Subsidiary (if applicable), the Annual Statement to be certified by a Responsible
Officer of such Designated Insurance Subsidiary, all such statements to be prepared in
accordance with SAP consistently applied throughout the periods reflected therein;
(f) as soon as available but not later than 75 days after the close of each of the
first three fiscal quarters of each fiscal year of each Designated Insurance Subsidiary (or,
if earlier, within five Business Days after the Company shall have filed such financial
statements with the applicable Governmental Authority), copies of the Quarterly Statement of
such Designated Insurance Subsidiary (if applicable), as of the end of and for such fiscal
quarter, the Quarterly Statement to be certified by a Responsible Officer of such Designated
Insurance Subsidiary, all such statements to be prepared in accordance with SAP consistently
applied throughout the period reflected therein;
(g) not later than January 31, 2011, a complete and correct list (in detail reasonably
satisfactory to the Administrative Agent) of Indebtedness of the Company and each Material
Subsidiary permitted under Section 6.01(b), in each case, existing as of the Effective Date
and, with respect to any particular such Indebtedness, in a principal amount of at least
$25,000,000; and
(h) promptly, such additional information regarding the business, financial or
corporate affairs of the Company or any Material Subsidiary, or compliance with the terms of
the Loan Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.
Letter of Credit Agreement and Reimbursement Agreement
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SECTION 5.02. Notices of Material Events. The Company will furnish to the
Administrative Agent (which shall promptly provide to each Lender) prompt written notice of the
following:
(a) any occurrence of any Default;
(b) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding $250,000,000;
(c) any change in the financial strength ratings for the Companys Designated Insurance
Subsidiaries from S&P and Moodys, or the placement by S&P or Moodys of the Company on a
CreditWatch or WatchList or any similar list, in each case with negative implications,
or its cessation of, or its intent to cease, rating of the financial strength (or
equivalent) of any such Designated Insurance Company; or
(d) any development that has resulted in, or could reasonably be expected to result in,
a Material Adverse Change.
Each notice delivered under this Section shall be accompanied by a statement of a Responsible
Officer of the Company setting forth the details of the event or development requiring such notice
and any action taken or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Company will, and will cause each
of its Designated Subsidiaries to, do or cause to be done all things necessary to preserve, renew
and keep in full force and effect (a) its legal existence and (b) the rights, licenses, permits,
privileges and franchises material to the conduct of its business, other than, in the case of
clause (b), the loss of which could not reasonably be expected to result in a Material Adverse
Change; provided that the foregoing shall not prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 6.03.
SECTION 5.04. Payment of Obligations. The Company will, and will cause each of its
Designated Subsidiaries to, pay, before the same shall become delinquent or in default, its
obligations, including Tax liabilities, that, if not paid, could reasonably be expected to result
in a Material Adverse Change, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Company or such Designated Subsidiary has set aside
on its books adequate reserves with respect thereto in accordance with GAAP or SAP, as applicable,
and (c) the failure to make payment pending such contest could not reasonably be expected to result
in a Material Adverse Change; provided that, for avoidance of doubt, solely with respect to
Taxes, an obligation shall be considered to be delinquent or in default for purposes of this
Section only if there has first been a notice and demand therefor (as defined in section 6303 of
the Code and similar provisions of Law) by a tax authority.
SECTION 5.05. Maintenance of Properties. The Company will, and will cause each of its
Designated Subsidiaries to, keep and maintain all property material to the conduct of its business
in good working order and condition (ordinary wear and tear excepted) and make all necessary
repairs thereto and renewals and replacements thereof, except, in each case, to the
Letter of Credit Agreement and Reimbursement Agreement
- 55 -
extent that failure to do so could not be reasonably expected to result in a Material Adverse
Change.
SECTION 5.06. Books and Records. The Company will, and will cause each of its
Designated Subsidiaries to, maintain proper books of record and account, in which full, true and
correct entries in conformity with GAAP or SAP, as applicable, consistently applied shall be made
of all financial transactions and matters involving the assets and business of the Company or such
Designated Subsidiary, as the case may be.
SECTION 5.07. Inspection Rights. The Company will, and will cause each of its
Designated Subsidiaries to, permit any representatives designated by any Agent and/or any Joint
Lead Arranger and (at any time a Default exists) any representatives reasonably designated by any
Lender, upon reasonable prior notice, to visit and inspect its properties, to examine and make
extracts from its books and other records reasonably requested (other than information subject to
confidentiality restrictions, insurance records and customer-related information), and to discuss
its affairs, finances and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested. The Company shall pay the reasonable costs
and expenses of any such visit or inspection, but only if a Default exists at the time thereof or
is discovered as a result thereof (provided that the Company shall have no responsibility
for any such costs and expenses under any other circumstance).
SECTION 5.08. Compliance with Laws and Contractual Obligations. The Company will, and
will cause each of its Designated Subsidiaries to, comply with all Laws and orders of any
Governmental Authority applicable to it or its property (including Environmental Laws) and all
Contractual Obligations binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in a Material Adverse
Change.
SECTION 5.09. Insurance. The Company will, and will cause each of its Designated
Subsidiaries to, maintain with financially sound and reputable insurance companies that are not
Affiliates of the Company, insurance with respect to its properties and business against loss or
damage of the kinds customarily insured against by Persons engaged in the same or similar business,
of such types and in such amounts (after giving effect to any self-insurance compatible with the
following standards) as are customarily carried under similar circumstances by such other Persons.
SECTION 5.10. Use of Letters of Credit. The Company will use the Letters of Credit
solely to support the reinsurance operations of the Companys Insurance Subsidiaries not in
contravention of any Law or any Loan Document.
ARTICLE VI
NEGATIVE COVENANTS
From the Closing Date and until the Commitments have expired or terminated, the Unreimbursed
Amounts and interest thereon and all fees payable hereunder have been paid in
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full and the Letters of Credit have expired or terminated, the Company covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness. The Company will not, nor will it cause or permit any of
its Material Subsidiaries to, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness of the Company incurred under the Loan Documents;
(b) (i) Indebtedness of the Company and/or any Material Subsidiary existing on the
Effective Date (provided that the aggregate principal amount of such existing
Indebtedness (other than Indebtedness permitted under any of the other clauses of this
Section (other than clause (l) hereof) shall not exceed $422,000,000); (ii) if any Material
Subsidiary shall become a Material Subsidiary after the Effective Date, Indebtedness of such
Material Subsidiary existing on the date such Material Subsidiary first becomes a Material
Subsidiary; (iii) if any Material Subsidiary ceases to be a Material Subsidiary and is
subsequently redesignated as a Material Subsidiary, Indebtedness of such Material Subsidiary
existing as of the date of such redesignation (including, in the case of clauses (i), (ii)
and (iii) above, any Indebtedness, including Guarantees, of any Material Subsidiary owing to
the Company or another Subsidiary); and (iv) any extensions, renewals, exchanges or
replacements of any such Indebtedness to the extent (A) the principal amount of such
Indebtedness is not increased (except by an amount equal to unpaid accrued interest and
premium thereon plus other reasonable fees and expenses incurred in connection with such
extension, renewals or replacement) and (B) such Indebtedness, if subordinated to the
Obligations, remains so subordinated on terms no less favorable to the Lenders;
(c) unsecured Indebtedness (including Guarantees) of any Material Subsidiary owing to
the Company or a Subsidiary of the Company incurred after the Effective Date;
(d) obligations of any Material Subsidiary (i) to return collateral consisting of cash
or securities arising out of or in connection with the lending of the same or substantially
similar securities or (ii) to purchase securities arising out of or in connection with the
sale of the same or substantially similar securities, in each case in the ordinary course of
the business of such Material Subsidiary, in each case consistent with past practice;
(e) Indebtedness of the Company or any Material Subsidiary in respect of
securitizations of any of its assets (including notes or accounts receivable) entered into
in the ordinary course of business, which shall be secured by Liens solely on such
securitized assets (including (i) Guarantees issued in connection therewith and (ii)
repurchase obligations for breach of representations and indemnities);
(f) unsecured or secured Indebtedness of the Company or any Material Subsidiary in
respect of letters of credit (other than the Letters of Credit) issued on behalf of any
Insurance Subsidiary for insurance regulatory or reinsurance purposes;
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(g) Indebtedness of a Person (other than the Company or any of its Affiliates) that is
consolidated on the balance sheet of the Company or any Material Subsidiary as a Variable
Interest Entity under Financial Accounting Standards Boards Interpretation No. 46R (or any
successor interpretations or amendments thereto and as affected by any subsequent relevant
pronouncements of the FASB or, if, and to the extent applicable, the SEC); provided
that the satisfaction of such Indebtedness is limited to the property of such Person (except
for customary exceptions for fraud, misapplication of funds, breach of representations and
environmental indemnities);
(h) Indebtedness of any Material Subsidiary secured by Liens on any of its real
property (including investments in real property) and certain personal property related
thereto; provided that (i) the recourse of the holder of such Indebtedness (whether
direct or indirect and whether contingent or otherwise) under the instrument creating such
Liens or providing for such Indebtedness shall be limited to such real property and personal
property relating thereto; and (ii) such holder may not under the instrument creating such
Lien or providing for such Indebtedness collect by levy of execution or otherwise against
property of such Material Subsidiary (other than such real property and personal property
relating thereto directly securing such Indebtedness) if such Material Subsidiary fails to
pay such Indebtedness when due and such holder obtains a judgment with respect thereto,
except for recourse obligations that are customary in non-recourse real estate
transactions;
(i) capital maintenance agreements, keep well agreements, support agreements and other
similar arrangements, whether or not constituting Indebtedness, provided by the Company or
any Material Subsidiary for the benefit of any Subsidiary of the Company;
(j) advances and extensions of credit to a Material Subsidiary by any Federal Home
Loan Bank;
(k) Indebtedness of the Company or any Material Subsidiary in respect of letters of
credit, bankers acceptances and/or loan facilities required to support the capital
requirements of Ascot Corporate Name Ltd., as a member of Lloyds of London; and
(l) additional unsecured Indebtedness of the Company and/or any of its Material
Subsidiaries in an aggregate principal amount not to exceed $100,000,000 at any one time
outstanding.
SECTION 6.02. Liens. The Company will not, nor will it cause or permit any of its
Designated Subsidiaries to, create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including
accounts receivable) or rights in respect of any thereof, except:
(a) (i) Liens of the Company existing on the Effective Date; and (ii) Liens of a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
Subsidiary and is subsequently redesignated as a Designated Subsidiary, Liens of such
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Designated Subsidiary as of the date of such redesignation; provided that, in
each case, such Liens (A) shall secure only those obligations that they secure on the
relevant date and extensions, renewals, exchanges and replacements thereof permitted
hereunder and (B) shall not apply to any property of the Company or any Subsidiary other
than the property thereof covered by such Liens on the relevant date;
(b) any Lien existing on any property or asset prior to the acquisition thereof by the
Company or any Designated Subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition, (ii) such Lien does not apply to
any other property or assets of the Company or any Subsidiary and (iii) such Lien secures
only those obligations that it secures on the date of such acquisition;
(c) Liens for taxes, assessments and governmental charges not yet due or that are
being contested in compliance with Section 5.04;
(d) carriers, warehousemens, mechanics, materialmens, repairmens or other like
Liens arising in the ordinary course of business and securing obligations that are not due
and payable or that are being contested in compliance with Section 5.04;
(e) pledges and deposits made in the ordinary course of business in compliance with
workmens compensation, unemployment insurance and other social security Laws;
(f) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature incurred in the
ordinary course of business;
(g) zoning restrictions, easements, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the business of the
Company or any Designated Subsidiary;
(h) Liens arising in the ordinary course of business on operating accounts (including
any related securities accounts) maintained by the Company or any Designated Subsidiary in
the ordinary course of business, including bankers Liens and rights of setoff arising in
connection therewith;
(i) judgment Liens securing judgments not constituting an Event of Default under
Article VII;
(j) Liens securing Swap Contracts entered into in the ordinary course of business and
not for speculative purposes and consistent with prudent business practice to hedge or
mitigate risks to which the Company or any Designated Subsidiary is exposed in the conduct
of their business or management of their liabilities;
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(k) Liens arising out of deposits of cash or securities into collateral trusts or
reinsurance trusts with ceding companies, insurance regulators or as otherwise incurred in
the ordinary course of business of the Company and any Designated Subsidiary;
(l) Liens on assets acquired, constructed or improved by the Company or any Designated
Subsidiary; provided that (i) such Liens and the Indebtedness secured thereby are
incurred prior to or within 360 days after such acquisition or the completion of such
construction or improvement, (ii) the Indebtedness secured thereby does not exceed the cost
of acquiring, constructing or improving such assets and (iii) such Liens shall not apply to
any other property or assets of such Person;
(m) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements constructed) by the Company or
any Designated Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by Section 6.01, (ii) such security interests are incurred, and the
Indebtedness secured thereby is created, within 90 days after such acquisition (or
construction), (iii) the Indebtedness secured thereby does not exceed the lesser of the cost
or the fair market value of such real property, improvements or equipment at the time of
such acquisition (or construction) or (iv) such security interests do not apply to any other
property or assets of the Company or any Subsidiary;
(n) Liens arising in connection with secured Indebtedness of the Company or any
Designated Subsidiary to the extent permitted under Section 6.01 (including the Liens
permitted by Section 6.01(e)); and
(o) Liens not otherwise permitted by this Section arising in the ordinary course of
the business of the Company or any Designated Subsidiary that do not secure any
Indebtedness.
SECTION 6.03. Fundamental Changes. Except for the Potential Divestitures, the Company
will not, nor will it cause or permit any of its Designated Subsidiaries to, merge into or
consolidate with any other Person, or permit any other Person to merge into or consolidate with it,
or liquidate or dissolve, except that, if at the time thereof and immediately after giving effect
thereto no Default has occurred and is continuing:
(i) any Designated Subsidiary may merge with or into the Company; provided
that the Company shall be the surviving entity; and
(ii) any Designated Subsidiary may merge with or into any other Subsidiary;
provided that the surviving entity shall be deemed to be a Designated Subsidiary.
SECTION 6.04. Lines of Business. The Company will not, nor will it cause or permit any of
its Designated Subsidiaries to, engage to any material extent in any business other than the
businesses of the type conducted by the Company and its Designated Subsidiaries on the date hereof
and business activities reasonably related or incidental thereto (including any new insurance and
reinsurance businesses by any Insurance Subsidiary in the ordinary course of its business).
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SECTION 6.05. Dispositions. The Company will not, nor will it cause or permit any of
its Designated Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, any part of its business or property, whether now owned or
hereafter acquired (including receivables and leasehold interests), except:
(a) Dispositions by the Company or any Designated Subsidiary in the ordinary course of
its business (including dividends and such Dispositions involving current assets or other
invested assets);
(b) Dispositions of equipment or other property which is obsolete or no longer used or
useful in the conduct of the business of the Company or such Designated Subsidiary;
(c) Dispositions from the Company to a Designated Subsidiary or any other Subsidiary,
and Dispositions from a Designated Subsidiary to the Company, another Designated Subsidiary
or any other Subsidiary;
(d) discounts or forgiveness of accounts receivable in the ordinary course of business
or in connection with collection or compromise thereof and for which adequate reserves have
been established;
(e) Potential Divestitures;
(f) Dispositions of tax credits (or properties or ownership interests in properties,
or disposition of loans or interests in loans to properties, acquired to generate tax
credits);
(g) Dispositions by the Company or any Designated Subsidiary in connection with
securitizations permitted under Section 6.01(e); and
(h) other Dispositions; provided that (i) the aggregate value of assets sold,
leased, transferred or otherwise disposed after the Effective Date pursuant to this clause
(h) shall not exceed 15% of the total assets of the managed businesses of the Company and
its Subsidiaries (based on the Combined Balance Sheet for the fiscal quarter ended September
30, 2010 and calculated after giving pro forma effect to the Potential Divestitures (as if
the same had been consummated as of such date)) and (ii) at the time of any such
Disposition, no Default shall exist or would result therefrom.
SECTION 6.06. Transactions with Affiliates. The Company will not, nor will it cause
or permit any of its Designated Subsidiaries to, sell or transfer any property or assets to, or
purchase or acquire any property or assets from, or otherwise engage in any other transactions
with, any of its Affiliates, except that: (a) the Company or any Designated Subsidiary may engage
in any such transactions on terms and conditions not less favorable to the Company or such
Designated Subsidiary than could be obtained on an arms-length basis from unrelated third parties;
and (b) the Company or any Designated Subsidiary may engage in any such transactions with any
Subsidiary (but not involving any Affiliate that is not a Subsidiary).
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SECTION 6.07. Certain Restrictive Agreements. The Company will not, nor will it cause
or permit any of its Designated Subsidiaries to, directly or indirectly, enter into any agreement
or other arrangement (other than this Agreement and any other Loan Document) that (a) prohibits,
restricts or imposes any condition upon the ability of the Company or any such Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets (including Equity
Interests of such Persons direct Subsidiaries) or (b) requires the grant of a Lien to secure an
obligation of the Company or any such Designated Subsidiary if a Lien is granted to secure another
obligation of the Company or any such Designated Subsidiary; except:
(i) restrictions and conditions imposed by Law or any Loan Document;
(ii) restrictions on the Company existing on the Effective Date, restrictions on a
Designated Subsidiary existing on the date such Designated Subsidiary first becomes a
Designated Subsidiary, and, if any Designated Subsidiary ceases to be a Designated
Subsidiary and is subsequently redesignated as a Designated Subsidiary, restrictions on such
Designated Subsidiary as of the date of such redesignation;
(iii) customary restrictions and conditions contained in any agreements relating to
the sale of property pending such sale; provided that such restrictions and
conditions apply only to the property to be sold and such sale is permitted hereunder;
(iv) restrictions or conditions imposed by any agreement relating to secured
Indebtedness or secured Swap Contracts permitted by this Agreement if such restrictions or
conditions apply only to the property securing such Indebtedness or such secured Swap
Contracts, as the case may be; and
(v) customary provisions in leases and other contracts restricting the assignment
thereof.
SECTION 6.08. Fiscal Year. The Company will not change the last day of its fiscal
year from December 31 of each year, or the last days of the first three fiscal quarters in each of
its fiscal years from March 31, June 30 and September 30 of each year, respectively.
SECTION 6.09. Financial Covenants.
(a) Combined Net Worth. The Company will not permit Combined Net Worth at any time
to be less than $35,500,000,000.
(b) Combined Statutory Surplus. The Company will not permit Combined Statutory
Surplus at any time to be less than $26,000,000,000.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events (Events of Default) shall occur:
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(a) the Company shall fail to pay any Unreimbursed Amount when and as the same shall
become due and payable, whether at the due date thereof or by acceleration or otherwise;
(b) the Company shall fail to pay any interest on any Unreimbursed Amount or any fee or
any other amount (other than an amount referred to in clause (a) of this Article) due under
any Loan Document, when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or on behalf of the Company
in or in connection with any Loan Document or any amendment or modification thereof, or any
representation, warranty, statement or information contained in any report, certificate,
financial statement or other instrument furnished in connection with or pursuant to any Loan
Document or any amendment or modification hereof or thereof, shall prove to have been
incorrect in any material respect when made, deemed made or furnished;
(d) (i) the Company shall fail to observe or perform any covenant, condition or
agreement contained in Sections 5.02(a), 5.02(d), 5.03(a) and 5.10 and in Article VI; (ii)
the Company shall fail to observe or perform any covenant, condition or agreement contained
in Sections 5.01(f), 5.02(b) and 5.02(c) and such failure shall continue unremedied for a
period of three or more Business Days; or (iii) the Company shall fail to observe or perform
any covenant, condition or agreement contained in Section 5.07 and such failure shall
continue unremedied for a period of five or more Business Days after notice thereof from the
Administrative Agent to the Company (given at the request of any Lender);
(e) the Company shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document (other than those specified in clause (a), (b) or (d) of this
Article) and such failure shall continue unremedied for a period of 30 or more days after
notice thereof from the Administrative Agent to the Company (given at the request of any
Lender);
(f) (i) the Company or any of its Subsidiaries shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable (beyond any applicable grace period
expressly set forth in the governing documents); or (ii) any event or condition occurs that
results in any Material Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (after taking into account any applicable grace period) the holder or
holders of any such Material Indebtedness or any trustee or agent on its or their behalf to
cause such Material Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity; provided that
this subclause (ii) shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such Indebtedness;
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(g) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Company or
any Material Subsidiary or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Company or any Material Subsidiary or for a
substantial part of the assets of the Company or any Material Subsidiary, and, in any such
case, such proceeding or petition shall continue undismissed for a period of 60 or more days
or an order or decree approving or ordering any of the foregoing shall be entered;
(h) the Company or any Material Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar Law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (g) of this Article,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any Material Subsidiary or
for a substantial part of the assets of the Company or any Material Subsidiary, (iv) file an
answer admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments shall be rendered against the Company and/or its Subsidiaries
or any combination thereof and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively stayed, or any action shall
be legally taken by a judgment creditor to attach or levy upon any assets of the Company or
any Subsidiary to enforce any such judgment, and such judgment and/or judgments either is or
are, as applicable, for (i) the payment of money in an aggregate amount in excess of
$500,000,000 (or its equivalent in any other currency) or (ii) injunctive relief and could
reasonably be expected to result in a Material Adverse Change;
(j) an ERISA Event shall have occurred that, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a Material Adverse
Change;
(k) any of the Loan Documents shall cease for any reason to be in full force and effect
(other than in accordance with its terms), or the Company or any Subsidiary shall deny in
writing that it has any further liability thereunder;
(l) there shall have occurred a Change in Control; or
(m) the Company shall cease to be a wholly-owned direct or indirect subsidiary of AIG;
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then, and in every such event (other than an event with respect to Company described in clause (g)
or (h) 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
Company, take any or all of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately; (ii) declare the
Unreimbursed Amounts then outstanding to be due and payable in whole (or in part, in which case any
such Unreimbursed Amounts not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the Unreimbursed Amounts so declared to be due and payable,
together with accrued interest thereon and all fees and other obligations of the Company accrued
hereunder, shall become due and payable immediately and (iii) require that the Company Cash
Collateralize its L/C Obligations (in an amount equal to 103% of the then Outstanding Amount
thereof plus any accrued and unpaid interest thereon), in each case, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by the Company,
anything contained herein to the contrary notwithstanding; and in case of any event with respect to
the Company described in clause (g) or (h) of this Article, the Commitments shall automatically
terminate and the Unreimbursed Amounts then outstanding, together with accrued interest thereon and
all fees and other obligations of the Company accrued hereunder, shall automatically become due and
payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid
shall automatically become effective, in each case, without further act of the Administrative Agent
or any Lender and without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company, anything contained herein to the contrary notwithstanding.
ARTICLE VIII
AGENTS
Each of the Lenders hereby irrevocably appoints each of the Administrative Agent and each
Several L/C Agent as its agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent and such Several L/C Agent to take such actions on its behalf and to exercise
such powers as are delegated to the Administrative Agent or such Several L/C Agent by the terms
hereof or thereof, together with such actions and powers as are reasonably incidental thereto.
Any Person serving as an 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 such Agent, and
such Person and its Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not
such Agent hereunder.
No Agent shall have any duties or obligations except those expressly set forth herein and in
the other Loan Documents. Without limiting the generality of the foregoing, (a) no Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and
is continuing, (b) no Agent shall have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby or by
the other Loan Documents that such Agent is required to exercise in writing by the Required Lenders
and (c) except as expressly set forth herein and in the other
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Loan Documents, no Agent shall have any duty to disclose, or be liable for the failure to
disclose, any information relating to the Company or any of its Subsidiaries that is communicated
to or obtained by the Person serving as such Agent or any of its Affiliates in any capacity. No
Agent shall be liable for any action taken or not taken by it with the consent or at the request of
the Required Lenders or in the absence of its own gross negligence or wilful misconduct. No Agent
shall be deemed to have knowledge of any Default unless and until written notice thereof is given
to such Agent by the Company or a Lender, and no Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in or in connection
with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein or therein, other than
(in the case of the Administrative Agent) to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Each 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. Each Agent also
may rely upon any statement made to it orally or by telephone and believed by it to be made by the
proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with
legal counsel (who may be counsel for the Company), 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.
Each 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 such Agent. Each 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 each Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided for herein as well
as activities as an 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
Company; provided that if the Person acting as the Administrative Agent at any time is also
acting as a Several L/C Agent, such Person shall also resign as such Several L/C Agent at such
time. Upon any such resignation, the Required Lenders shall have the right, in consultation with
the Company, to appoint a successor Administrative Agent (which Person shall also be appointed as a
successor Several L/C Agent, if applicable). If no successor shall have been so appointed by the
Required Lenders 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 (and, if applicable, successor
Several L/C Agent) which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank, in each case with a combined capital and surplus of at least $500,000,000. Upon the
acceptance of its appointment as Administrative
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Agent (and, if applicable, Several L/C Agent) hereunder by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent (and, if applicable, Several L/C Agent) and the retiring
Administrative Agent (and, if applicable, Several L/C Agent) shall be discharged from its duties
and obligations hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the Administrative Agents (and, if applicable, Several L/C Agents) resignation hereunder,
the provisions of this Article and Section 9.03 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 (and,
if applicable, Several L/C Agent).
Each Lender acknowledges that it has, independently and without reliance upon any 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 any 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 other Loan
Document or any related agreement or any document furnished hereunder or thereunder.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company, the Administrative Agent (irrespective of whether any L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of whether the
Administrative Agent shall have made any demand on the Company) shall be entitled and empowered, by
intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of
any L/C Obligation and interest owing and unpaid in respect of thereof and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary or advisable in
order to have the claims of the Lenders and the Agents (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the Agents and their
respective agents and counsel and all other amounts due the Lenders and the Agents under Sections
2.01(c) and 9.03) allowed in such judicial proceeding; and (b) to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Lender and each Agent to make such payments
to the Administrative Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Agents, to pay to the Administrative Agent
any amount due for the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the Agents under
Sections 2.01(c) and 9.03. Nothing contained herein shall be deemed to authorize the
Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any
other Agent any plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or any other Agent or to authorize the Administrative Agent
to vote in respect of the claim of any Lender or any other Agent in any such proceeding.
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Notwithstanding anything to the contrary contained herein, the Joint Lead Arrangers, the
Syndication Agents and the Co-Documentation Agents named on the cover page of this Agreement shall
not have any duties or liabilities under this Agreement (except as expressly provided herein and
except, in each case, in its capacity, if any, as a Lender).
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and subject to paragraph (b) of this Section), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, to
the applicable address or telecopier number for the applicable Person in Schedule 9.01.
(b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept
notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be limited to
particular notices or communications.
(c) Change of Address, Etc. 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.
SECTION 9.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or further exercise
thereof or the exercise of any other right or power. The rights and remedies of the Administrative
Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or consent to any
departure by the Company therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only
in the specific instance and for the purpose for which given. Without limiting the generality of
the foregoing, the issuance, amendment or extension of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether the
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Administrative Agent or any Lender may have had notice or knowledge of such Default at the
time.
(b) 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
Company and the Required Lenders or by the Company 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 any Unreimbursed Amount or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender directly and
adversely affected thereby (provided that only the consent of the Required Lenders
shall be necessary to amend the definition of Default Rate or to waive any obligation of
the Company to pay interest at the Default Rate);
(iii) postpone the scheduled date of payment of any Unreimbursed Amount, 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 directly and adversely affected thereby;
(iv) change Section 2.06(b) or (c) in a manner that would alter the pro rata sharing of
payments required thereby, without the written consent of each Lender;
(v) change any of the provisions of this Section or the definition of the term
Required Lenders or any other provision hereof specifying the number or percentage of
Lenders required to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of each Lender; or
(vi) release the Company from its obligations with respect to Letters of Credit for
which any Subsidiary is named as an applicant hereunder, without the written consent of each
Lender;
and provided further that no such agreement shall (A) amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder or amend, modify or waive any
provision of Section 2.10 without the prior written consent of the Administrative Agent or (B)
amend, modify or otherwise affect the rights or duties of any other Agent hereunder without the
prior written consent of such other Agent.
SECTION 9.03. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company agrees to pay or reimburse (i) all reasonable
out-of-pocket expenses incurred by the Agents, the Joint Lead Arrangers and their respective
Affiliates, including the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit facilities provided for
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herein, the preparation and administration of this Agreement and the other Loan Documents or
any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated); and (ii) all out-of-pocket
expenses incurred by any Agent or any Lender, including the fees, charges and disbursements of any
counsel for any Agent or any Lender, in connection with the enforcement or protection of its rights
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or in connection with the Letters of Credit issued hereunder, including in connection with
any workout, restructuring or negotiations in respect thereof, including in each case the fees,
charges and disbursements of counsel, accountants, financial advisors and other experts engaged by
the Agents or the Required Lenders (including the allocated fees of in-house counsel). This
Section shall not apply with respect to Taxes other than any Taxes that represent losses or damages
arising from any non-Tax claim.
(b) Indemnification by Company. The Company agrees to indemnify each Agent, each
Joint Lead Arranger 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 any agreement or instrument contemplated hereby, the performance by the parties hereto
of their respective obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Letter of Credit or the use or intended use thereof,
(iii) any transfer, sale, delivery, surrender or endorsement of any draft, demand, certificate or
other document presented under any Letter of Credit, (iv) any independent undertakings issued by
the beneficiary of any Letter of Credit, (v) any unauthorized communication or instruction (whether
oral, telephonic, written, telegraphic, facsimile or electronic) regarding any Letter of Credit or
error in computer transmission, (vi) an adviser, confirmer or other nominated person seeking to be
reimbursed, indemnified or compensated in respect of any Letter of Credit, (vii) any third party
seeking to enforce the rights of an applicant, beneficiary, nominated person, transferee or
assignee of proceeds of any Letter of Credit, (viii) the fraud, forgery or illegal action of
parties other than the Indemnitees, (ix) the enforcement of this Agreement or any rights or
remedies under or in connection with any Letter of Credit Document or (x) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on
contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and
regardless of whether such matter is initiated by a third party, the Company or any of its
Subsidiaries); provided that such indemnity shall not, as to any Indemnitee, be available
to the extent that such losses, claims, damages, liabilities or related expenses are determined by
a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee. This Section shall not apply with
respect to Taxes other than any Taxes that represent losses or damages arising from any non-Tax
claim.
(c) Reimbursement by Lenders. To the extent that the Company fails to pay any amount
required to be paid by it to any Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to such Agent such Lenders Applicable Percentage (determined as of the
time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid
amount; provided that the unreimbursed expense or indemnified loss, claim, damage,
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liability or related expense, as the case may be, was incurred by or asserted against such
Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable Law,
the Company shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Letter of Credit or the use or the intended
use thereof.
(e) Use of Information. No Person indemnified under paragraph (b) of this Section
shall be liable for any damages arising from the use by others of any information or other
materials obtained through Intralinks or other similar information transmission systems in
connection with this Agreement other than for direct or actual damages resulting from the gross
negligence or wilful misconduct of such indemnified Person as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(f) Payments. All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns.
(a) Assignments Generally. 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 (i) the Company 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 Company without such consent shall be null and void) and (ii) no
Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance
with this Section. 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 and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents,
the Lenders and the Joint Lead Arrangers) any legal or equitable right, remedy or claim under or by
reason of this Agreement or the other Loan Documents.
(b) Assignments by Lenders. (i) Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights and
obligations under this Agreement (including all or a portion of its Commitment and interests in
Letters of Credit) with the prior written consent (such consent not to be unreasonably withheld)
of:
(A) the Company; provided that no consent of the Company shall be required for
an assignment to (I) a Lender, an Affiliate of a Lender or an Approved Fund or (II) if an
Event of Default has occurred and is continuing, any other assignee; and provided,
further, that the Company shall be deemed to have consented to any such assignment
requiring its consent under this clause (A) unless it shall object thereto by written notice
to the Administrative Agent within 15 Business Days after having received written notice
thereof; and
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(B) the Administrative Agent; provided that no consent of the Administrative
Agent shall be required for an assignment to a Lender.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the entire remaining amount of the assigning Lenders
Commitment, the amount of the Commitment of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less than $5,000,000
unless each of the Company (except if an Event of Default has occurred and is continuing)
and the Administrative Agent otherwise consent (which consent shall not be unreasonably
withheld);
(B) each partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lenders rights and obligations under this Agreement;
(C) the parties to each assignment shall execute and deliver to the Administrative
Agent an Assignment and Assumption, together with a processing and recordation fee of
$3,500;
(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire in which the assignee designates one or more credit
contacts to whom all syndicate-level information (which may contain material non-public
information about the Company and its Related Parties or their respective securities) will
be made available and who may receive such information in accordance with the assignees
compliance procedures and applicable Laws, including Federal and state securities Laws; and
(E) no such assignment shall be made to (I) the Company or any of the Companys
Affiliates or Subsidiaries, (II) any Defaulting Lender or any of its Subsidiaries, or any
Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons
described in this subclause (II), (III) a natural person or a corporation, limited liability
company, trust or other entity owned, operated or established for the primary benefit of a
natural person and/or family members or relatives of such person or (IV) any Person which is
a Non-NAIC Approved Bank (unless such Non-NAIC Approved Bank shall have in effect a
Confirming Bank Agreement or Limited Fronting Lender Agreement, in each case, with a Person
or Lender, as applicable, which is a NAIC Approved Bank).
(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this
Section, from and after the effective date specified in each Assignment and Assumption, the
assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and
the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Assumption, be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lenders rights and
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obligations under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.04, 2.05 and 9.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of this Section.
(iv) Maintenance of Register by Administrative Agent. The Administrative Agent,
acting for this purpose as a non-fiduciary agent of the Company, shall maintain at one of its
offices a copy of each Assignment and Assumption delivered to it and a register for the recordation
of the names and addresses of the Lenders, and the Commitment of, and Letters of Credit issued by,
each Lender pursuant to the terms hereof from time to time (the Register). The entries
in the Register shall be conclusive absent manifest error, and the Company, the Administrative
Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Company and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Effectiveness of Assignments. Upon its receipt of a duly completed Assignment and
Assumption executed by an assigning Lender and an assignee, the assignees completed Administrative
Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and
recordation fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Assumption and record the information contained therein in the Register;
provided that if either the assigning Lender or the assignee shall have failed to make any
payment required to be made by it pursuant to Section 2.01(c), 2.06(e) or 9.03(c), the
Administrative Agent shall have no obligation to accept such Assignment and Assumption and record
the information therein in the Register unless and until such payment shall have been made in full,
together with all accrued interest thereon. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Participations. Any Lender may, without the consent of the Company or the
Administrative Agent, sell participations to one or more banks or other entities (a
Participant) in all or a portion of such Lenders rights and obligations under this
Agreement (including all or a portion of its Commitment and interests in Letters of Credit);
provided that (A) such Lenders obligations under this Agreement shall remain unchanged;
(B) such Lender shall remain solely responsible to the other parties hereto for the performance of
such obligations; and (C) the Company, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such Lenders rights and
obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. The Company agrees that each
Participant shall be entitled to the benefits of Sections 2.04 and 2.05 to the same
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extent as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section; provided that such Participant (A) shall be subject to the
requirements and limitations therein, including the requirements under Section 2.05(f) (it being
understood that the documentation required under Section 2.05(f) shall be delivered to the
participating Lender); (B) agrees to be subject to the provisions of Sections 2.06 and 2.07 as if
it were an assignee under paragraph (b) of this Section; and (C) shall not be entitled to receive
any greater payment under Section 2.04 or 2.05, with respect to any participation, than its
participating Lender would have been entitled to receive, except to the extent such entitlement to
receive a greater payment results from a Change in Law that occurs after the Participant acquired
the applicable participation. To the extent permitted by Law, each Participant also shall be
entitled to the benefits of Section 9.09 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.06(d) as though it were a Lender. Each Lender that
sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the
Company, maintain a register on which it enters the name and address of each Participant and the
amounts (and stated interest) of each Participants interest in the Letters of Credit or other
obligations under this Agreement (the Participant Register); provided that no
Lender shall have any obligation to disclose all or any portion of the Participant Register to any
Person (including the identity of any Participant or any information relating to a Participants
interest in any Commitment, Letter of Credit or other obligations under any Loan Document) except
if additional payments under Sections 2.04 and 2.05 are requested with respect to such Participant
and except to the extent that such disclosure is necessary to establish that such Commitment,
Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the United
States Treasury Regulations. The entries in the Participant Register shall be conclusive absent
manifest error, and such Lender shall treat each person whose name is recorded in the Participant
Register as the owner of such participation for all purposes of this Agreement notwithstanding any
notice to the contrary.
(d) Certain Pledges. 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 9.05. Survival. All representations and warranties made by the Company herein
and in the certificates or other instruments delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the issuance,
amendment or extension of any Letters of Credit, regardless of any investigation made by or on
behalf of any Lender and notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at the time any credit
is extended hereunder, and shall continue in full force and effect as long as any Unreimbursed
Amount or any fee or any other amount payable under this Agreement or any other Loan Document is
outstanding and unpaid and so long as the Commitments and the Letters of Credit have not expired or
been terminated. The provisions of Sections 2.04, 2.05 and 9.03 and Article VIII shall survive and
remain in full force and effect regardless of the consummation of the transactions contemplated
hereby, any assignment of rights by, or replacement of, a Lender, the expiration or termination of
the Commitments and the
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Letters of Credit, the repayment, satisfaction or discharge of all Obligations under the Loan
Documents, the invalidity or unenforceability of any term or provision of any Loan Document or any
investigation made by or on behalf of any Lender.
SECTION 9.06. 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, the other Loan Documents and any separate letter agreements with respect
to fees payable to the Administrative Agent constitute the entire contract between and 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. This Agreement (except as
provided in Section 4.01) shall become effective as of the Effective Date 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 to this Agreement by telecopy
shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9.08. Payments Set Aside. To the extent that any payment by or on behalf of
the Company is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or
required (including pursuant to any settlement entered into by the Administrative Agent or such
Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection
with any proceeding under any Federal, state or foreign bankruptcy, insolvency, receivership or
similar Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds
Effective Rate from time to time in effect. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.
SECTION 9.09. Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and its Affiliates are authorized at any time and from time to time, to the
fullest extent permitted by Law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing
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by such Lender and its Affiliates to or for the credit or the account of the Company against
any of and all the obligations of the Company hereunder and under the other Loan Documents,
irrespective of whether or not such Lender shall have made any demand under this Agreement and
although such obligations may be unmatured. The rights of each Lender under this Section are in
addition to other rights and remedies (including other rights of setoff) which such Lender may
have. Each Lender agrees to notify the Company and the Administrative Agent promptly after any
such setoff and application, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
SECTION 9.10. Governing Law; Jurisdiction; Consent to Service of Process.
(a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Submission to Jurisdiction. The Company hereby irrevocably and unconditionally
submits, for itself and its property, to the exclusive 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 the other Loan Documents, 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 the Administrative
Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement
against the Company or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. The Company hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Loan Documents in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
Law.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
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HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.12. Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.13. 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 Related Parties (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 or quasi-regulatory authority (such as the NAIC), (c) to the extent
required by any 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
under any other Loan Document or any suit, action or proceeding relating to this Agreement or any
other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement in writing containing provisions substantially the same as those of this paragraph and
for the benefit of the Company, 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 Company or (h) to the extent such Information (i) becomes publicly available other than as a
result of a breach of this paragraph or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than the Company. In the event that the
Administrative Agent or any Lender becomes legally compelled to disclose any confidential
Information pursuant to clause (c) of this Section, the Administrative Agent or such Lender shall,
to the extent permitted by Law, give prompt written notice of that fact to the Company prior to the
disclosure, and in the event that the Company shall advise the Administrative Agent or such Lender
that it will seek an appropriate remedy to prevent or limit such disclosure, the Administrative
Agent or such Lender, as applicable, shall cooperate reasonably (at the expense of the Company)
with the Company in seeking such remedy. For the purposes of this Section, Information
means all information received from the Company relating to the Company, its Subsidiaries or their
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 Company; provided that, in the
case of information received from the Company after the Effective Date, such information is clearly
identified at or prior to 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.
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EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN THIS SECTION) FURNISHED TO IT
PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND
ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE
PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH
MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING
FEDERAL AND STATE SECURITIES LAWS.
ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY OR
THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE
SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY
AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE
COMPANY AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A
CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN
ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE
SECURITIES LAWS.
SECTION 9.14. USA PATRIOT Act. Each Lender hereby notifies the Company that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), such Lender may be required to obtain, verify and record information that identifies
the Company, which information includes the name and address of the Company and other information
that will allow such Lender to identify the Company in accordance with said Act.
SECTION 9.15. No Advisory or Fiduciary Relationships. In connection with all aspects
of each transaction contemplated hereby (including in connection with any amendment, waiver or
other modification hereof or of any other Loan Document), the Company acknowledges and agrees that:
(a) (i) the arranging and other services regarding this Agreement provided by the Administrative
Agent, the Lenders and the Joint Lead Arrangers are arms-length commercial transactions between
the Company and its Affiliates, on the one hand, and the Administrative Agent, the Lenders and the
Joint Lead Arrangers, on the other hand, (ii) the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it has deemed appropriate, and (iii) the Company is
capable of evaluating, and understands and accepts, the terms, risks and conditions of the
transactions contemplated hereby and by the other Loan Documents; (b) (i) the Administrative Agent,
the Lenders and the Joint Lead Arrangers each is and has been acting solely as a principal and,
except as expressly agreed in writing by the relevant parties, has not been, is not, and will not
be acting as an advisor, agent or fiduciary for the Company or any of its Affiliates, or any other
Person and (ii) none of the Administrative Agent, the Lenders and the Joint Lead Arrangers has any
obligation to the Company or any of its Affiliates with respect to the transactions contemplated
hereby except those obligations expressly set forth herein and in the other Loan Documents; and (c)
the Administrative Agent, the Lenders and the Joint Lead Arrangers and their respective Affiliates
may be engaged in a broad range of
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transactions that involve interests that differ from those of the Company and its Affiliates,
and none of the Administrative Agent, the Lenders and Joint Lead Arrangers has any obligation to
disclose any of such interests to the Company or its Affiliates. To the fullest extent permitted
by Law, the Company hereby waives and releases any claims that it may have against the
Administrative Agent, the Lenders and the Joint Lead Arrangers with respect to any breach or
alleged breach of agency or fiduciary duty in connection with any aspect of any transaction
contemplated hereby.
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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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CHARTIS INC.
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By |
/s/ Craig Leslie
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Name: |
Craig Leslie |
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Title: |
Vice President and Treasurer
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U.S. Federal Tax Identification No.:
20-5971809 |
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- 80 -
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|
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|
|
LENDERS
JPMORGAN CHASE BANK, N.A.,
individually and as the Administrative Agent
and a Several L/C Agent
|
|
|
By |
/s/ Michael E. Murray
|
|
|
|
Name: |
Michael E. Murray |
|
|
|
Title: |
Executive Director |
|
Letter of Credit Agreement and Reimbursement Agreement
- 81 -
|
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|
BANK OF AMERICA, N.A.,
as a Lender and a Syndication Agent
|
|
|
By |
/s/ Jason Cassity
|
|
|
|
Name: |
Jason Cassity |
|
|
|
Title: |
Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 82 -
|
|
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|
CITIBANK, N.A.,
as a Lender and a Syndication Agent
|
|
|
By |
/s/ Maureen Maroney
|
|
|
|
Name: |
Maureen Maroney |
|
|
|
Title: |
Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 83 -
|
|
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|
DEUTSCHE BANK AG NEW YORK BRANCH
|
|
|
By |
/s/ Robert Chesley
|
|
|
|
Name: |
Robert Chesley |
|
|
|
Title: |
Director |
|
|
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|
|
|
By |
/s/ John S. McGill
|
|
|
|
Name: |
John S. McGill |
|
|
|
Title: |
Director |
|
Letter of Credit Agreement and Reimbursement Agreement
- 84 -
|
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|
|
|
STANDARD CHARTERED BANK
|
|
|
By |
/s/ Robert Gilbert
|
|
|
|
Name: |
Robert Gilbert |
|
|
|
Title: |
Managing Director |
|
|
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|
By |
/s/ Robert K. Reddington
|
|
|
|
Name: |
Robert K. Reddington |
|
|
|
Title: |
Credit Documentation Manager |
|
Letter of Credit Agreement and Reimbursement Agreement
- 85 -
|
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|
BARCLAYS BANK PLC
|
|
|
By |
/s/ Kevin Cullen
|
|
|
|
Name: |
Kevin Cullen |
|
|
|
Title: |
Director |
|
Letter of Credit Agreement and Reimbursement Agreement
- 86 -
|
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|
BNP PARIBAS
|
|
|
By |
/s/ Joseph M. Malley
|
|
|
|
Name: |
Joseph M. Malley |
|
|
|
Title: |
Managing Director |
|
|
|
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By |
/s/ Riad Jafarov
|
|
|
|
Name: |
Riad Jafarov |
|
|
|
Title: |
Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 87 -
|
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|
CREDIT SUISSE AG, NEW YORK BRANCH
|
|
|
By |
/s/ Jay Chall
|
|
|
|
Name: |
Jay Chall |
|
|
|
Title: |
Director |
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By |
/s/ Karl Studer
|
|
|
|
Name: |
Karl Studer |
|
|
|
Title: |
Director |
|
Letter of Credit Agreement and Reimbursement Agreement
- 88 -
|
|
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|
|
GOLDMAN SACHS BANK USA
|
|
|
By |
/s/ Mark Walton
|
|
|
|
Name: |
Mark Walton |
|
|
|
Title: |
Authorized Signatory |
|
Letter of Credit Agreement and Reimbursement Agreement
- 89 -
|
|
|
|
|
|
LLOYDS TSB BANK PLC
|
|
|
By |
/s/ Rich Herder
|
|
|
|
Name: |
Rich Herder |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Morgan Beanland
|
|
|
|
Name: |
Morgan Beanland |
|
|
|
Title: |
Senior Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 90 -
|
|
|
|
|
|
MORGAN STANLEY BANK, N.A.
|
|
|
By |
/s/ Ryan Vetsch
|
|
|
|
Name: |
Ryan Vetsch |
|
|
|
Title: |
Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 91 -
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION
|
|
|
By |
/s/ Gustavus A. Bahr
|
|
|
|
Name: |
Gustavus A. Bahr |
|
|
|
Title: |
Senior Vice President |
|
Letter of Credit Agreement and Reimbursement Agreement
- 92 -
|
|
|
|
|
|
ROYAL BANK OF CANADA
|
|
|
By |
/s/ Tim Stephens
|
|
|
|
Name: |
Tim Stephens |
|
|
|
Title: |
Authorized Signatory |
|
Letter of Credit Agreement and Reimbursement Agreement
- 93 -
|
|
|
|
|
|
THE ROYAL BANK OF SCOTLAND PLC
|
|
|
By |
/s/ Charles Greer
|
|
|
|
Name: |
Charles Greer |
|
|
|
Title: |
Managing Director |
|
Letter of Credit Agreement and Reimbursement Agreement
- 94 -
|
|
|
|
|
|
UBS AG, STAMFORD BRANCH
|
|
|
By |
/s/ Irja R. Otsa
|
|
|
|
Name: |
Irja R. Otsa |
|
|
|
Title: |
Associate Director |
|
|
|
|
|
|
By |
/s/ Mary E. Evans
|
|
|
|
Name: |
Mary E. Evans |
|
|
|
Title: |
Associate Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 95 -
|
|
|
|
|
|
WELLS FARGO BANK, N.A.
|
|
|
By |
/s/ Robert Meyer
|
|
|
|
Name: |
Robert Meyer |
|
|
|
Title: |
Managing Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 96 -
|
|
|
|
|
|
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
|
|
|
By |
/s/ Robert Grillo
|
|
|
|
Name: |
Robert Grillo |
|
|
|
Title: |
Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 97 -
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK
|
|
|
By |
/s/ Charles Kornberger
|
|
|
|
Name: |
Charles Kornberger |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Frank Tatulli
|
|
|
|
Name: |
Frank Tatulli |
|
|
|
Title: |
Managing Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 98 -
|
|
|
|
|
|
ING BANK N.V.
|
|
|
By |
/s/ C. van den Berge
|
|
|
|
Name: |
C. van den Berge |
|
|
|
Title: |
Director |
|
|
|
|
|
|
By |
/s/ R. Liebesny
|
|
|
|
Name: |
R. Liebesny |
|
|
|
Title: |
Manager |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 99 -
|
|
|
|
|
|
MIZUHO CORPORATE BANK, LTD.
|
|
|
By |
/s/ Toru Inoue
|
|
|
|
Name: |
Toru Inoue |
|
|
|
Title: |
Deputy General Manager |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 100 -
|
|
|
|
|
|
NATIONAL AUSTRALIA BANK LIMITED
|
|
|
By |
/s/ Helen Hsu
|
|
|
|
Name: |
Helen Hsu |
|
|
|
Title: |
Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 101 -
|
|
|
|
|
|
SOCIETE GENERALE
|
|
|
By |
/s/ William Aishton
|
|
|
|
Name: |
William Aishton |
|
|
|
Title: |
Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 102 -
|
|
|
|
|
|
STATE STREET BANK AND TRUST COMPANY
|
|
|
By |
/s/ Kimberly R. Costa
|
|
|
|
Name: |
Kimberly R. Costa |
|
|
|
Title: |
Assistant Vice President |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 103 -
|
|
|
|
|
|
SUMITOMO MITSUI BANKING CORPORATION
|
|
|
By |
/s/ William M. Ginn
|
|
|
|
Name: |
William M. Ginn |
|
|
|
Title: |
Executive Officer |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 104 -
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA
|
|
|
By |
/s/ David Mahmood
|
|
|
|
Name: |
David Mahmood |
|
|
|
Title: |
Managing Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 105 -
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON
|
|
|
By |
/s/ Michael Pensari
|
|
|
|
Name: |
Michael Pensari |
|
|
|
Title: |
Vice President |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 106 -
|
|
|
|
|
|
UNICREDIT BANK AG, NEW YORK BRANCH
|
|
|
By |
/s/ Jorge Wilmer
|
|
|
|
Name: |
Jorge Wilmer |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Michael A. Imperiale
|
|
|
|
Name: |
Michael A. Imperiale |
|
|
|
Title: |
Director |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 107 -
|
|
|
|
|
|
U.S. BANK N.A.
|
|
|
By |
/s/
Inna Kotsubey |
|
|
|
Name: Inna Kotsubey |
|
|
|
Title: Vice President |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 108 -
|
|
|
|
|
|
MANUFACTURERS & TRADERS TRUST COMPANY
|
|
|
By |
/s/ Laurel LB Magruder
|
|
|
|
Name: |
Laurel LB Magruder |
|
|
|
Title: |
Vice President |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 109 -
|
|
|
|
|
|
NATIXIS, NEW YORK BRANCH
|
|
|
By |
/s/ Ray Meyer
|
|
|
|
Name: |
Ray Meyer |
|
|
|
Title: |
Managing Director |
|
|
|
|
|
|
By |
/s/ Paul Goncharoff
|
|
|
|
Name: |
Paul Goncharoff |
|
|
|
Title: |
Associate |
|
|
Letter of Credit Agreement and Reimbursement Agreement
- 110 -
|
|
|
|
|
|
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL.)
|
|
|
By |
/s/ Karin Lindblad
|
|
|
|
Name: |
Karin Lindblad |
|
|
|
Title: |
|
|
|
|
|
|
|
By |
/s/ Eszler Wijkman
|
|
|
|
Name: |
Eszler Wijkman |
|
|
|
Title: |
|
|
|
Letter of Credit Agreement and Reimbursement Agreement
SCHEDULE 2.01
Commitments
|
|
|
|
|
Name of Lender |
|
Commitment ($) |
|
JPMORGAN CHASE BANK, N.A. |
|
$ |
50,000,000.00 |
|
|
|
|
|
|
BANK OF AMERICA, N.A. |
|
$ |
50,000,000.00 |
|
|
|
|
|
|
CITIBANK, N.A. |
|
$ |
50,000,000.00 |
|
|
|
|
|
|
DEUTSCHE BANK AG NEW YORK BRANCH |
|
$ |
47,500,000.00 |
|
|
|
|
|
|
STANDARD CHARTERED BANK |
|
$ |
47,500,000.00 |
|
|
|
|
|
|
BARCLAYS BANK PLC |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
BNP PARIBAS |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
CREDIT SUISSE AG, NEW YORK BRANCH |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
GOLDMAN SACHS BANK USA |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
LLOYDS TSB BANK PLC |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
MORGAN STANLEY BANK, N.A. |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
PNC BANK, NATIONAL ASSOCIATION |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
ROYAL BANK OF CANADA |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
THE ROYAL BANK OF SCOTLAND PLC |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
UBS AG, STAMFORD BRANCH |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
WELLS FARGO BANK, N.A. |
|
$ |
45,000,000.00 |
|
|
|
|
|
|
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
ING BANK N.V. |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
MIZUHO CORPORATE BANK, LTD. |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
NATIONAL AUSTRALIA BANK LIMITED |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
SOCIETE GENERALE |
|
$ |
40,000,000.00 |
|
Schedule 2.01 to Credit Agreement
|
|
|
|
|
Name of Lender |
|
Commitment ($) |
|
STATE STREET BANK AND TRUST COMPANY |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
SUMITOMO MITSUI BANKING CORPORATION |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
THE BANK OF NOVA SCOTIA |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
UNICREDIT BANK AG, NEW YORK BRANCH |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
U.S. BANK N.A. |
|
$ |
40,000,000.00 |
|
|
|
|
|
|
MANUFACTURERS & TRADERS TRUST COMPANY |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
NATIXIS, NEW YORK BRANCH |
|
$ |
30,000,000.00 |
|
|
|
|
|
|
SKANDINAVISKA ENSKILDA BANKEN AB (PUBL.) |
|
$ |
20,000,000.00 |
|
|
|
|
|
|
|
|
|
|
TOTAL |
|
$ |
1,300,000,000.00 |
|
Schedule 2.01 to Credit Agreement
SCHEDULE 4.02(e)
Financial Strength Ratings
|
|
|
|
|
|
|
|
|
|
|
S&P |
|
Moodys |
|
|
Financial |
|
|
|
Financial |
|
|
|
|
Strength Rating |
|
Status |
|
Strength Rating |
|
Status |
American Home Assurance Co. |
|
A+ |
|
Negative |
|
Aa3 |
|
Negative |
|
|
|
|
|
|
|
|
|
National Union Fire Ins.
Co. of Pittsburgh PA |
|
A+/A-1 |
|
Negative |
|
Aa3 |
|
Negative |
Schedule 4.02(e) to Credit Agreement
SCHEDULE 9.01
Notice Information
I. Company:
Chartis Inc.
175 Water Street
New York, New York 10038
Attention: General Counsel
Fax No.: 212-458-3330
Telephone No.: 212-458-3132
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Erik Lindauer
Fax No.: 212-558-3588
Telephone No.: 212-558-3548
II. Administrative Agent:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Vashni Whittaker
Fax No.: 713-750-2223
Telephone No.: 713-483-1080
with a copy to:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Lydia Gomez
Fax No.: 713-750-2223
Telephone No.: 713-750-2531
III. Several L/C Agent:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Vashni Whittaker
Fax No.: 713-750-2223
Telephone No.: 713-483-1080
Schedule 9.01 to Credit Agreement
with a copy to:
JPMorgan Chase Bank, N.A.
1111 Fannin Street, Floor 10
Houston, Texas 77002-6925
Attention: Lydia Gomez
Fax No.: 713-750-2223
Telephone No.: 713-750-2531
IV. Lenders
Initially, as provided in the relevant Lenders Administrative Questionnaire
Schedule 9.01 to Credit Agreement
EXHIBIT A
[FORM OF ASSIGNMENT AND ASSUMPTION]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between the Assignor identified in item 1
below (the Assignor) and the Assignee identified in item 2 below (the
Assignee). Capitalized terms used but not defined herein shall have the meanings given
to them in the Credit Agreement identified below (as amended, the Credit Agreement),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and
the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in
accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignors rights
and obligations in its capacity as a Lender under the Letter of Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and obligations of the
Assignor under the respective facilities identified below (including without limitation any letters
of credit, guarantees and swingline loans included in such facilities) and (ii) to the extent
permitted to be assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown,
arising under or in connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity related to the rights
and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and
assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to
herein collectively as the Assigned Interest). Each such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment and Assumption,
without representation or warranty by the Assignor.
|
|
|
|
|
|
|
1.
|
|
Assignor: |
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
Assignee: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[and is an [Affiliate][Approved Fund] of [identify Lender]]1 |
|
|
|
|
|
|
|
3. |
|
Company: |
|
Chartis Inc. |
|
|
|
|
|
|
|
4. |
|
Administrative Agent: |
|
JPMorgan Chase Bank, N.A., as the administrative agent under the Credit Agreement |
Assignment and Assumption
- 2 -
|
|
|
|
|
|
|
5. |
|
Credit Agreement: |
|
The $1,300,000,000 Letter of Credit and Reimbursement Agreement dated as of
December 23, 2010 among Chartis Inc., the Lenders party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent, and the other agents party thereto. |
|
|
|
|
|
|
|
6.
|
|
Assigned Interest: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percentage |
|
|
|
|
Aggregate Amount |
|
Amount of |
|
Assigned of |
|
|
|
|
of Commitment/ |
|
Commitment/ |
|
Commitment/ |
|
|
|
|
interests in Letters |
|
interests in |
|
interests in |
|
|
|
|
of Credit for all |
|
Letters of Credit |
|
Letters of |
Assignor |
|
Assignee |
|
Lenders |
|
Assigned |
|
Credit |
|
|
|
|
$
|
|
$
|
|
% |
|
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Effective
Date: , 201___[ TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE
EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By: |
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Title: |
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ASSIGNEE
[NAME OF ASSIGNEE]
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By: |
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Title: |
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Assignment and Assumption
- 3 -
[Consented to and]2 Accepted:
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JPMORGAN CHASE BANK, N.A.,
as Administrative Agent |
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By |
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Title:
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[Consented to:]3 |
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CHARTIS INC. |
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By |
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Title:
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2 |
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To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
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3 |
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To be added only if the consent of the Company is required by the terms of the Credit Agreement. |
Assignment and Assumption
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any
lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power
and authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Lender under the
Credit Agreement, (ii) it meets all the requirements, if any, under the Credit Agreement including
Section 9.04(b) thereof (subject to such consents, if any, as may be required under such Section
9.04(b)), (iii) from and after the Effective Date, it shall be bound by the provisions of the
Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the
obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire
assets of the type represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring
assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has
been accorded the opportunity to receive copies of the most recent financial statements delivered
pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it
deems appropriate to make its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest, (vi) 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 Assignment and
Assumption and to purchase the Assigned Interest and (vii) if it is a Non-U.S. Lender, attached to
the Assignment and Assumption is any documentation required to be delivered by it pursuant to the
terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i)
it will, independently and without reliance on the Administrative Agent, the Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
Assignment and Assumption
- 2 -
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of the Assigned Interest (including payments of principal, interest, fees
and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
Assignment and Assumption
EXHIBIT B
FORMS OF U.S. TAX CERTIFICATES
[See Attached Forms]
U.S. Tax Certificate
EXHIBIT B-1
[FORM OF U.S. TAX CERTIFICATE]
(FOR NON-U.S. LENDERS THAT ARE NOT PARTNERSHIPS
FOR U.S. FEDERAL INCOME TAX PURPOSES)
Reference is hereby made to the Letter of Credit and Reimbursement Agreement dated as of
December 23, 2010 (as modified and supplemented and in effect from time to time, the
Agreement) among Chartis Inc. (the Company), the lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the Administrative Agent),
and the other agents party thereto. Unless otherwise defined herein, terms defined in the
Agreement and used herein shall have the meanings given to them in the Agreement.
Pursuant to the provisions of Section 2.05 of the Agreement, the undersigned hereby certifies
that (i) it is the sole record and beneficial owner of the interests in Letters of Credit in
respect of which it is providing this certificate, (ii) it is not a bank within the meaning of
Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within
the meaning of Section 871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation
related to the Company as described in Section 881(c)(3)(C) of the Code and (v) the interest
payments in question are not effectively connected with the undersigneds conduct of a U.S. trade
or business.
The undersigned has furnished the Administrative Agent and the Company with a certificate of
its non-U.S. person status on United States Internal Revenue Service Form W-8BEN. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
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[NAME OF LENDER] |
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By: |
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Name:
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Title: |
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Date: , 201__ |
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U.S. Tax Certificate
EXHIBIT B-2
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Lenders That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Letter of Credit and Reimbursement Agreement dated as of
December 23, 2010 (as modified and supplemented and in effect from time to time, the
Agreement) among Chartis Inc. (the Company), the lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the Administrative Agent),
and the other agents party thereto. Unless otherwise defined herein, terms defined in the
Agreement and used herein shall have the meanings given to them in the Agreement.
Pursuant to the provisions of Section 2.05 of the Agreement, the undersigned hereby certifies
that (i) it is the sole record owner of the interests in Letters of Credit in respect of which it
is providing this certificate, (ii) its partners/members are the sole beneficial owners of such
interests in Letters of Credit, (iii) with respect to the extension of credit pursuant to the
Agreement, neither the undersigned nor any of its partners/members is a bank extending credit
pursuant to a loan agreement entered into in the ordinary course of its trade or business within
the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members is a ten percent
shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code, (v) none of its
partners/members is a controlled foreign corporation related to the Company as described in Section
881(c)(3)(C) of the Code, and (vi) the interest payments in question are not effectively connected
with the undersigneds or its partners/members conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Company with United States
Internal Revenue Service Form W-8IMY accompanied by a United States Internal Revenue Service Form
W-8BEN from each of its partners/members claiming the portfolio interest exemption. By executing
this certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2)
the undersigned shall have at all times furnished the Company and the Administrative Agent with a
properly completed and currently effective certificate in either the calendar year in which each
payment is to be made to the undersigned, or in either of the two calendar years preceding such
payments.
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[NAME OF LENDER] |
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By: |
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Name:
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Title: |
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Date: , 201__ |
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U.S. Tax Certificate
EXHIBIT B-3
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Not Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Letter of Credit and Reimbursement Agreement dated as of
December 23, 2010 (as modified and supplemented and in effect from time to time, the
Agreement) among Chartis Inc. (the Company), the lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the Administrative Agent),
and the other agents party thereto. Unless otherwise defined herein, terms defined in the
Agreement and used herein shall have the meanings given to them in the Agreement.
Pursuant to the provisions of Section 2.05 of the Agreement, the undersigned hereby certifies
that (i) it is the sole record and beneficial owner of the participation in respect of which it is
providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the
Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section
871(h)(3)(B) of the Code, (iv) it is not a controlled foreign corporation related to the Company as
described in Section 881(c)(3)(C) of the Code, and (v) the interest payments in question are not
effectively connected with the undersigneds conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S.
person status on United States Internal Revenue Service Form W-8BEN. By executing this
certificate, the undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned
shall have at all times furnished such Lender with a properly completed and currently effective
certificate in either the calendar year in which each payment is to be made to the undersigned, or
in either of the two calendar years preceding such payments.
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[NAME OF PARTICIPANT] |
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By: |
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Name:
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Title: |
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Date: , 201__ |
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U.S. Tax Certificate
EXHIBIT B-4
[FORM OF U.S. TAX CERTIFICATE]
(For Non-U.S. Participants That Are Partnerships
For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Letter of Credit and Reimbursement Agreement dated as of
December 23, 2010 (as modified and supplemented and in effect from time to time, the
Agreement) among Chartis Inc. (the Company), the lenders party thereto,
JPMorgan Chase Bank, N.A., as Administrative Agent thereunder (the Administrative Agent),
and the other agents party thereto. Unless otherwise defined herein, terms defined in the
Agreement and used herein shall have the meanings given to them in the Agreement.
Pursuant to the provisions of Section 2.05 of the Agreement, the undersigned hereby certifies
that (i) it is the sole record owner of the participation in respect of which it is providing this
certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii)
with respect such participation, neither the undersigned nor any of its partners/members is a bank
extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or
business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its partners/members
is a ten percent shareholder of the Company within the meaning of Section 871(h)(3)(B) of the Code,
(v) none of its partners/members is a controlled foreign corporation related to the Company as
described in Section 881(c)(3)(C) of the Code, and (vi) the interest payments in question are not
effectively connected with the undersigneds or its partners/members conduct of a U.S. trade or
business.
The undersigned has furnished its participating Lender with United States Internal Revenue
Service Form W-8IMY accompanied by a United States Internal Revenue Service Form W-8BEN from each
of its partners/members claiming the portfolio interest exemption. By executing this certificate,
the undersigned agrees that (1) if the information provided on this certificate changes, the
undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times
furnished such Lender with a properly completed and currently effective certificate in either the
calendar year in which each payment is to be made to the undersigned, or in either of the two
calendar years preceding such payments.
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[NAME OF PARTICIPANT] |
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By: |
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Name:
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Title: |
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Date: , 201__ |
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U.S. Tax Certificate