EX-10.41 11 exhibit1041.htm EXHIBIT 10.41
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Exhibit 10.41
Certain information in the marked exhibit below
has been omitted because it is both (i) not material and (ii) is the
type that the registrant
treats as private or confidential.
Omissions are designated as “[*****].”
Standby Letter of Credit
Agreement
(USD $200,000,000 Committed/ USD $100,000,000 Uncommitted)
(Unsecured)
STANDBY LETTER
OF
CREDIT
AGREEMENT
(the
“
Agreement
”),
dated
as
of November 21, 2022,
by
and
among
EVEREST
REINSURANCE
(BERMUDA),
LTD.,
a
company
incorporated and existing
under the laws of Bermuda (the
“
Account
Party
”), and NORDEA BANK ABP,
NEW YORK BRANCH
(together with its successors and assigns, “
Bank
”).
1.
DEFINED
TERMS.
Definitions.
For purposes of this Agreement, in addition to the terms defined
elsewhere herein, the
following
terms
have
the
meanings
set
forth
below
(such
meanings to
be
equally applicable to the singular and plural forms
thereof):
“
Affected Financial Institution
” means (a) any EEA Financial Institution or (b) any UK
Financial Institution.
“
A.M. Best
” means A.M. Best Company, Inc.
“
Anti-Corruption Laws
” means all laws, rules, and regulations of any jurisdiction
applicable to the Account Party from time to time concerning or relating to bribery or
corruption, including, to the extent applicable, the United States Foreign Corrupt
Practices
Act
of
1977
and
the
rules
and
regulations
thereunder and
the U.K.
Bribery Act 2010 and the rules and regulations
thereunder.
“
Anti-Money
Laundering
Laws
”
means
any
and
all
laws,
rules
and
regulations
applicable to the Account Party from time to time concerning or relating to terrorism
financing or money laundering, including any applicable provision of the PATRIOT
Act
and The Currency and Foreign Transactions Reporting Act (also known as the “Bank
Secrecy Act,” 31 U.S.C. §§ 5311-5330 and 12 U.S.C. §§ 1818(s), 1820(b) and 1951-1959).
“
Application
” has the meaning set forth in
Section
2(a)
.
“
Annual Statement
” means, with respect to the Account Party for any fiscal year,
the
annual financial statements of the Account Party as required to be filed with
the
Insurance Regulatory Authority
of
its
jurisdiction
of
domicile
and
in
accordance
with
the
laws
of
such jurisdiction, together with all exhibits, schedules,
certificates and actuarial opinions required to be filed or delivered therewith.
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“
Bail-In Action
” means the exercise of any Write-Down and Conversion Powers
by the
applicable Resolution Authority in respect of any liability of an Affected Financial
Institution.
“
Bail-In Legislation
” means (a) with respect to any EEA Member Country
implementing Article 55 of Directive 2014/59/EU of the European Parliament and of
the Council of the European Union, the implementing law, regulation rule or
requirement for such EEA Member Country from time to time which is described in the
EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom,
Part I of
the United Kingdom Banking Act 2009 (as amended from time to time) and any other
law,
regulation or rule applicable in the United Kingdom relating to the resolution of
unsound or failing banks, investment firms or other financial institutions or their
affiliates (other than through liquidation, administration or other insolvency
proceedings).
“
Bankruptcy Law
” means the United States Bankruptcy Code (11 U.S.C. § 101
et seq.
),
as amended, modified, succeeded or replaced from time to time, and all other
liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors,
moratorium,
rearrangement, receivership,
insolvency,
reorganization
or similar debtor
relief
laws
of the United States or any state thereof,
Bermuda or any other foreign or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors
generally.
“
Base Rate
” means, at any time, (a) the rate per annum quoted by the New York
Branch of Nordea as its “Federal Funds Offered Rate” at 4:00 p.m., New York time, on
such Business Day plus (b) 2.00%, or such other rate or series of rates as determined by
Bank and notified to Account Party in writing; provided that, (i) if the day for which
such rate is to be determined is not a Business Day, the Base Rate for such day shall be
such rate as quoted on the immediately preceding Business Day and (ii) if the Base Rate
shall be less than zero, such rate shall be deemed to be zero for purposes of this
Agreement.
“
Business
Day
”
means
any
day
other
than
a
Saturday,
Sunday
or
legal
holiday
on
which banks in Hamilton, Bermuda and New York City, New York,
are open for the
conduct of their commercial banking business.
“
Capital Stock
” means (i) with respect to any Person that is a corporation, any and all
shares, interests or equivalents in capital stock (whether voting or nonvoting, and
whether common or preferred) of such corporation, and (ii) with respect to any Person
that is not a corporation, any and all partnership, membership, limited liability
company
or
other
equity interests of
such
Person;
and
in
each
case,
any
and
all
warrants,
rights
or
options
to
purchase any of the foregoing.
“
Cash Equivalents
” means (i) securities issued or unconditionally guaranteed by the
United States
of
America
or
any
agency
or
instrumentality
thereof,
backed
by
the
full
faith and credit of the United States of America and maturing within 90 days from
the date of acquisition, (ii) commercial paper issued by any Person organized under the
laws of the United
States
of
America,
maturing
within
90
days
from
the date of
acquisition and,
at
the time of acquisition, having a rating of at least A 1 or the
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equivalent thereof by Standard & Poor’s or at least P 1 or the equivalent thereof by
Moody’s, (iii) time deposits and certificates of deposit maturing within 90 days from the
date of issuance and issued by a bank or trust company organized under the laws of the
United States of America or any state thereof that has combined capital and surplus of
at least $500,000,000 and that has (or is a subsidiary of a bank holding
company that
has) a long-term unsecured debt rating of at least A or the equivalent
thereof
by
S&P
or
at least
A2
or
the
equivalent thereof by Moody’s, (iv) repurchase obligations with a term not
exceeding seven (7) days with respect to underlying
securities
of
the
types
described
in
clause
(i)
above
entered
into with any bank or trust company meeting the
qualifications specified in clause (iii) above, and (v) money market funds at least 95% of
the assets of which are continuously invested in securities of the type described in
clauses (i) through (iv)
above.
“
Change in Control
” means (a) the acquisition of ownership, directly or indirectly,
beneficially or of record, by any Person or group (within the meaning of the Securities
Exchange Act of 1934 and the rules of the SEC thereunder as in effect on the date
hereof), other than Everest Re Group, Ltd. and any of its direct or indirect Subsidiaries,
of Capital Stock representing 25% or more of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of the Account Party; or (b) the
acquisition of direct or indirect Control of the Account Party by any Person or group,
other than Everest Re Group, Ltd. and any of its direct or indirect Subsidiaries.
“
Change in Law
” means the occurrence after the date of this Agreement of: (a) the
adoption or effectiveness of any law,
rule, regulation, judicial ruling, judgment or treaty,
(b) any change in any law,
rule, regulation or treaty or in the administration
interpretation, implementation or
application
by
any
Governmental
Authority
of
any law,
rule,
regulation or treaty, or (c) the making or issuance by any Governmental
Authority of any request, rule, guideline or directive, whether or not having the force of
law; provided that notwithstanding anything herein to the contrary, (i) the Dodd-Frank
Wall Street Reform and Consumer Protection Act and all requests,
rules,
guidelines
or
directives
thereunder
or issued in connection therewith and (ii) all
requests, rules, guidelines or directives concerning capital adequacy promulgated by the
Bank for International Settlements, the Basel Committee on Banking Supervision
(or
any
successor
or
similar
authority)
or
the U.S. federal or foreign regulatory
authorities
shall,
in
each
case,
be
deemed
to
be
a
“Change in Law,”
regardless of the
date enacted, adopted or
issued.
“
Closing Date
” means November 21, 2022.
“
Code
” means the Internal Revenue Code of 1986, and the rules and regulations
promulgated thereunder.
[*****]
[*****]
[*****]
[*****]
“
Committed Standby Letter of Credit Facility
” means a committed standby letter of
credit in an aggregate principal amount at any time outstanding not to exceed
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$200,000,000, as such amount may be reduced from time to time pursuant to the
terms hereof.
“
Commitment
” means the obligation of Bank to Issue Letters of Credit for the account
of the Account Party under, and not exceed, the
Committed Standby Letter of Credit
Facility.
“
Commitment Termination Date
” means the earliest to occur of (a) two (2) years from
the Termination Notice Date pursuant to
Section 13(b)
, (b) the date of termination of
the entire Commitment by the Account Party pursuant to
Section 2(h)
, (c) the date of
termination of the Commitment pursuant to
Section
11(a)
and (d) the date that is four
(4) years from the Closing Date (i.e., the fourth anniversary of the Closing Date).
[*****]
“
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
Documents
”
means,
collectively,
this
Agreement,
the
Letter
of
Credit
Docu
ments, each Security Document, and each other agreement, document, or instrument
executed and delivered by the Account Party to Bank in connection with any Credit
Document or any Letter of Credit.
[*****]
[*****]
“
Default
” means any of the events specified in
Section
10
which with the passage of
time, the giving of notice or any other condition, would constitute an Event of Default.
“
Disqualified Capital Stock
” means, with respect to any Person, any Capital Stock of
such Person that, by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable), or upon the happening of any event or otherwise, (i)
matures or is mandatorily redeemable or subject to any mandatory
repurchase
requirement, pursuant to a sinking fund obligation or otherwise, (ii) is
redeemable or subject to any mandatory repurchase requirement at the
sole
option
of
the
holder
thereof, or (iii) is convertible into or exchangeable
for
(whether at
the
option
of
the issuer or the holder thereof) (A) debt securities
or (B)
any Capital Stock referred to in clause (i) or (ii) above, in each case under clause (i), (ii)
or (iii) above at any time on or prior to the Commitment Termination
Date; provided, however,
that only the portion of Capital Stock that so matures or is
mandatorily redeemable, is so redeemable at the option of the holder thereof, or is so
convertible or exchangeable on or prior to such date shall be deemed to be Disqualified
Capital Stock.
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“
Dollar Amount
” means, at any time, with respect to any amount denominated in
Dollars, such amount.
“
Dollars
” or “
$
” means dollars of the United States of America.
“
Draw Date
” has the meaning specified in
Section
2(b)(i)
.
“
Drawing Document
” has the meaning specified in Section 2(e)(ii).
“
Due Date
” has the meaning specified in
Section
2(b)(i)
.
“
EEA Financial Institution
” means (a) any credit institution or investment firm established
in any EEA Member Country which is subject to the supervision of an EEA Resolution
Authority, (b) any entity established in an EEA Member Country which is a parent of an
institution described in clause (a) of this definition, or (c) any financial institution
established in an EEA Member Country which is a subsidiary of an institution described
in
clauses (a) or (b) of this definition and is subject to consolidated supervision with its
parent.
“
EEA Member Country
” means any of the member states of the European Union, Iceland,
Liechtenstein, and Norway.
“
EEA Resolution Authority
” means any public administrative authority or any Person
entrusted with public administrative authority of any EEA Member Country (including any
delegee) having responsibility for the resolution of any EEA Financial Institution.
“
ERISA
”
means
the
Employee
Retirement
Income
Security
Act
of
1974, as amended.
“
ERISA Affiliate
” means any trade or business (whether or not incorporated) that,
together with the Account Party, is treated
as a single employer
under Section 414(b) or (c) of the Code or Section 4001(14)
of ERISA or, solely for
purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414(m) or (o) 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) the failure to satisfy the “minimum funding
standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived with respect to any Plan; (c) 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; (d) the incurrence by the Account Party or any of its
ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of
any Plan; (e) the receipt by the Account Party or any of its ERISA Affiliates from the PBGC
or a plan administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Account
Party or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal of the Account Party or any of its ERISA Affiliates from any Plan or
Multiemployer Plan; or (g) the receipt by the Account Party or any of its ERISA Affiliates
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of any notice, or the receipt by any Multiemployer Plan from, the Account Party, or any
of its ERISA Affiliates of any notice, concerning the imposition upon the Account Party, or
any of its ERISA Affiliates of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent within the meaning of Title IV of ERISA.
“
EU Bail-In Legislation Schedule
” means the EU Bail-In Legislation Schedule published by
the Loan Market Association (or any successor person), as in effect from time to time.
“
EU Blocking Regulation
” means, collectively, the Council Regulation (EC) No. 2271/96 of
November 22, 1996, as amended by Commission Delegated Regulation (EU) 2018/1100 of
June 6, 2018, Section 7 of the German Foreign Trade Ordinance
(
Außenwirtschaftsverordnung - AWV
), and any other applicable anti-boycott or similar
laws, each as in effect from time to time.
“
Event of Default
” has the meaning specified in
Section
10
.
“
Exchange Act
” means the Securities Exchange Act of 1934.
“
FATCA
” means (a) Sections 1471 through 1474 of the Code, as of the date of this
Agreement (or
any
amended
or
successor
version
that
is
substantively
comparable
and
not materially more onerous to comply with), any current or future regulations or
official interpretations thereof,
and any agreements entered into pursuant to Section
1471(b)(1) of the Code, (b) any treaty, law,
regulation or other official guidance enacted
in any other jurisdiction, or relating to an intergovernmental agreement between the
United States and any other jurisdiction with the purpose (in either case) of facilitating
the implementation of (a) above, or (c) any agreement pursuant to the implementation
of paragraphs (a) or (b) above with the IRS, the United States government or any
governmental or taxation authority in the United States.
“
Final Expiry Date
”
means
the
date
when
the
Commitment
Termination
Date
has
occurred,
all Letters of Credit have expired or terminated without any pending drawing
thereon, and all Obligations owing hereunder and in the other Credit Documents have
been paid in full.
“
Financial Strength Rating
” means, as to any Person as of any date of determination,
the rating that has been most recently announced by A.M. Best as the “financial
strength rating” of such
Person.
“
Fiscal Year
” means the fiscal year of the Account Party.
“
GAAP
” means generally accepted accounting principles in the United States set forth in
the opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or such other principles as may be approved by a
significant segment of the accounting profession in the United States, that are
applicable to the circumstances as of the date of determination, consistently applied.
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“
Governmental Authority
” means the government of any nation or any political
subdivision thereof, whether at the national, state, territorial, provincial, municipal or
any
other level,
and
any
agency,
authority,
instrumentality,
regulatory
body,
court,
centr
al
bank or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of, or
pertaining to, government (including any
supra-
national bodies such as the European Union or the European Central Bank).
“
Hedge
Agreement
”
means
any
interest
or
foreign
currency
rate
swap,
cap,
collar,
option, hedge, forward rate or other similar agreement or arrangement designed to
protect against
fluctuations in
interest
rates
or
currency
exchange
rates,
including
any
swap
agreement
(as defined in 11 U.S.C. § 101).
“
Hedge Termination Value
” means, in respect of any one or more Hedge Agreements,
after taking
into
account
the
effect
of
any
legally
enforceable
netting
agreement
relating
to such Hedge
Agreements,
(a)for any
date
on
or
after
the
date
such
Hedge
Agreements
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to the date referenced in
clause (a), the amount(s) determined as the mark-to-market value(s) for such Hedge
Agreements, as determined based upon one or more mid-market or other readily
available quotations provided by any recognized dealer in such Hedge Agreements (which
may include Bank or any affiliate of Bank).
“
Indebtedness
” means, with respect to any Person (without duplication), (i) all
indebtedness of
such
Person
for
borrowed
money
or
in
respect
of
loans
or
advances
,
(ii)
all obligations of such Person evidenced by notes, bonds, debentures or
similar
instruments, (iii) all reimbursement obligations of such Person with respect to
surety bonds, letters of credit and bankers’ acceptances (in each case, whether or not
drawn or matured and in the stated amount thereof), (iv) all obligations of such Person to
pay the deferred purchase price of property or services, (v) all indebtedness created or
arising under any conditional sale or other title retention agreement with respect to
property
acquired
by
such
Person, (vi) all obligations of such Person as lessee under
leases that are or are required to be, in accordance with GAAP,
recorded as
capital
or
finance
leases,
to
the
extent
such obligations are required to be so
recorded, (vii) all obligations and liabilities of such Person incurred in connection with any
transaction or series of transactions providing for the financing of assets through one or
more securitizations or in connection with, or pursuant to, any synthetic lease or similar
off-balance sheet financing, (viii) all Disqualified Capital Stock issued by such
Person, with
the amount of Indebtedness represented by such Disqualified Capital Stock being equal
to the greater of its voluntary or involuntary liquidation preference and its maximum
fixed repurchase price, but excluding accrued dividends, if any (for purposes hereof, the
“maximum fixed repurchase price” of any Disqualified Capital Stock that does not have
a
fixed
repurchase
price
shall
be
calculated
in
accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased on any
date
on
which
Indebtedness
shall
be
required
to
be determined pursuant to this
Agreement,
and
if
such
price
is
based
upon,
or
measured
by,
the
fair
market value
of such Disqualified Capital Stock, such fair market value shall be determined
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reasonably and
in
good
faith
by
the
board
of
directors
or
other
governing
body
of
t
he issuer of such Disqualified Capital Stock), (ix) the Hedge Termination Value of such
Person under any Hedge Agreements, calculated as of any date as if such agreement or
arrangement were terminated
as
of
such
date,
(x)
all
contingent
obligations
of
such
Person in respect of Indebtedness of other Persons and (xi) all indebtedness referred to
in clauses (i) through (x) above secured by any Lien on any property or asset owned or
held by such Person regardless of whether the indebtedness secured thereby shall have
been assumed
by such Person or is nonrecourse to the credit of such Person.
“
Instructions
” has the meaning set forth in
Section
2(a)
.
“
Insurance Regulatory Authority
” means, with respect to the Account Party, the
insurance department or similar Governmental Authority charged with regulating
insurance companies or insurance holding companies, in its jurisdiction of domicile and,
to the extent that it has regulatory authority over the Account Party,
in each other
jurisdiction in which the Account Party conducts business or is licensed to conduct
business.
“
Investment Company Act
” means the Investment Company Act of 1940 (15 U.S.C. §
80(a)(1),
et
seq.
).
“
IRS
” means the United States Internal Revenue Service.
“
issue
” means, with respect to any Letter of Credit, to issue, to amend or to extend the
expiry of, or to renew or increase the stated amount of,
such Letter of Credit. The terms
“
issued
”,
“
issuing
” and “
issuance
” have corresponding meanings.
“
Letters of Credit
” means the collective reference to standby letters of credit issued
pursuant to
Section
2
.
“
Letter of Credit Documents
” means, with respect to any Letter of Credit, collectively,
any Applications, agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit) governing or providing
for the
rights
and
obligations
of
the
parties
concerned
or
at
risk
with
respect
to
su
ch Letter of Credit.
“
Lien
” means any mortgage, pledge, hypothecation, assignment, security interest, lien
(statutory or otherwise), preference, priority,
charge or other encumbrance of any
nature, whether voluntary or involuntary,
including the interest of any vendor or lessor
under any conditional sale agreement, title retention agreement, capital lease or any
other lease or arrangement having substantially the same effect as any of
the foregoing.
“
Material Adverse Effect
” means a material adverse effect upon (i) the financial
condition, operations, business, properties or assets of the Account Party,
(ii)
the
ability
of
the
Account
Party to perform its
payment
or
other
material
obligations
under
this
Agreement
or
any
of
the
other
Credit Documents, or (iii)
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the legality, validity,
or enforceability of this Agreement or any of the other Credit
Documents or the rights and remedies of Bank hereunder and
thereunder.
“
Multiemployer Plan
” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“
Multiple Employer Plan
” means an employee pension benefit plan with respect to which
the Account Party or any of its ERISA Affiliates is a contributing sponsor, and that has two
(2) or more contributing sponsors at least two (2) of whom are not under common
control, as such a plan is described in Section 4064 of ERISA.
“
Non-Extension Notice Date
” has the meaning given to such term in
Section
2(g)
.
“
Notice of Non-Extension
” has the meaning given to such term in
Section
2(g)
.
“
Obligations
” means all obligations and liabilities (including (a) any interest and fees
accruing after the filing of a petition or commencement of a case by or with respect to
the Account Party seeking relief under any applicable Bankruptcy Laws, whether or not
the claim for
such
interest
or
fees
is
allowed or allowable in
such
proceeding, (b) the
obligation to provide cash collateral hereunder,
and (c) reimbursement and other
payment obligations
and
liabilities)
of
the
Account
Party
to
Bank arising under, or in
connection with, the applicable Credit Document (including
Section
5
below) any
Application or any Letter of Credit, in each case whether matured or unmatured, absolute
or contingent, now existing or hereafter incurred.
“
OFAC
” means the U.S. Department of the Treasury’s Office of Foreign Assets Control.
[*****]
“
Other Taxes
” has the meaning specified in
Section
2(c)
.
“
Outstanding
Letters
of
Credit
”
means,
as
of
any
date,
the
sum
of
(a)
the
Stated
Amount of all outstanding Letters of Credit at such time and, without duplication, (b) all
reimbursement obligations in respect of Letters of Credit at such time.
“
PATRIOT
Act
” means the USA PATRIOT
Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)).
“
Payment Date
” has the meaning specified in
Section
2(b)(i)
.
“
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, limited liability company,
trust, joint
venture, association, company,
partnership, governmental authority or other
entity.
“
Plan
” means any employee pension benefit plan (including a Multiple Employer Plan,
but other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or
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Section 412 of the Code or Section 302 of ERISA, and in respect of which
the Account
Party or any ERISA Affiliate thereof 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.
[*****]
“
Quarterly Statement
” means, with respect to the Account Party for any fiscal quarter,
the unaudited quarterly financial statements of the Account Party.
“
Requirement of Law
” means, with respect to any Person, the charter, articles,
constitution or certificate of organization or incorporation and by-laws or other
organizational or governing documents of such Person, and any statute, law,
treaty,
rule, regulation, order,
decree, writ, injunction or determination of any arbitrator or
court or other Governmental Authority, in each case applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is subject or
otherwise pertaining to any or all of the transactions contemplated by this Agreement
and the other Credit Documents.
“
Resolution Authority
” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“
Responsible Officer
” means, as to any Person, the chief executive officer,
president,
chief financial
officer,
controller,
treasurer
or
assistant
treasurer
of
such
Person
or
a
ny
other officer of such Person designated in writing by the Account Party and
reasonably
acceptable to
Bank;
provided
that,
to
the
extent
requested
thereby,
Bank
shall
have
received a certificate of such Person certifying as to the incumbency and genuineness of
the signature of each such officer. Any
document delivered hereunder or under any
other Credit Document that is signed by a Responsible Officer of a Person shall
be
conclusively presumed to have been authorized by all necessary corporate, limited
liability company, partnership and/or other action on the part of such Person and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Person.
“
S&P
” means Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc.
and any successor thereto.
“
Sanctions
” means any and all economic or financial sanctions, sectoral sanctions,
secondary sanctions,
trade
embargoes
and
anti-terrorism
laws,
including
but
not
limited
to those imposed, administered or enforced from time to time by the U.S.
government (including those administered by OFAC or the U.S. Department of State), the
United Nations Security Council, the European Union, Her Majesty’s Treasury,
or other
relevant sanctions authority.
“
Sanctioned
Country
”
means
at
any
time,
a
country,
territory
or
region
which
is
itself
the subject or target of any Sanctions.
11
Confidential
“
Sanctioned Person
” means, at any time, (a) any Person listed in any Sanctions-related
list of designated Persons maintained by OFAC (including, without limitation,
OFAC’s
Specially Designated Nationals
and
Blocked
Persons
List
and
OFAC’s
Consolidated
Non- SDN List), the U.S. Department of State, the United Nations Security Council, the
European Union, Her Majesty’s Treasury,
or other relevant sanctions authority, (b) any
Person located, operating,
organized
or
resident
in
a
Sanctioned
Country
or
(c)
any
Person owned or controlled by any such Person or Persons described in clauses (a)
and (b), including a
Person
that
is
deemed
by
OFAC
to
be
a
Sanctions
target
based
on
the
ownership of such legal entity by Sanctioned Peron(s).
[*****]
“
Solvent
” means, as to any Person as of any date of determination, that on such
date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including contingent liabilities, of such Person, (b) the present fair saleable
value of such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts, including contingent debts, as they
become absolute and matured, (c) such Person does not intend to, and does not believe
that it will, incur debts or liabilities, including contingent debts and liabilities, beyond
such Person’s ability to pay such debts and liabilities as they mature and (d) such Person
is not engaged in a business or a transaction, and is not about to engage in a business or
a transaction, for which such Person’s property would constitute
an unreasonably small
capital.
The amount of any contingent liability at any time shall be computed as the
amount that, in light of all of the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual or
matured liability.
[*****]
“
Standard Letter of Credit Practice
” means, for Bank, any U.S. federal or state or foreign
law or letter of credit practices applicable in the city in which Bank issued the
applicable Letter
of
Credit
or
for
its
branch
or
correspondent
banks,
such
laws
and
practices applicable in
the
city
in
which
it
has
advised,
confirmed
or
negotiated
such
Letter
of
Credit,
as the
case
may
be.
Such
practices
shall
be
(i)
of
banks
that
regularly
issue
letters
of
credit in the particular city, and (ii) required or permitted
under the ISP (as defined below) or UCP (as defined below), as chosen in the
applicable
Letter of Credit. “
ISP
” means, International Standby Practices 1998 (International
Chamber of Commerce Publication No. 590) and any subsequent revision thereof
adopted by the International Chamber of Commerce on the date such Letter of Credit is
issued. “
UCP
” means, Uniform Customs
and Practice
for
Documentary
Credits
2007
Revision,
International
Chamber
of
Commerce Publication No. 600 and any subsequent revision
thereof adopted by the International Chamber of Commerce on the date such Letter of
Credit is issued.
“
Stated Amount
” means, with respect to any Letter of Credit at any time, the aggregate
Dollar Amount available to be drawn thereunder at such time (regardless of whether
any conditions for drawing could then be met).
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Confidential
“
Subsidiary
” means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than fifty percent (50%) of the outstanding
Capital Stock having ordinary voting power to elect a majority of the board of directors
(or equivalent governing body) or other managers of such corporation, partnership,
limited liability company or other entity is at the time owned by (directly or indirectly)
such Person (irrespective of whether,
at the time, Capital Stock of any other class or
classes of such corporation, partnership, limited liability company or other entity shall
have or might have voting power by reason of the happening of any contingency).
“
Taxes
” has the meaning specified in
Section
2(c)
.
“Termination Notice Date
” has the meaning specified in
Section 13(b
).
[*****]
“
UCC
”
means
the
Uniform
Commercial
Code
as
in
effect
on the date hereof in the
State
of New York.
“
UK Financial Institution
”
means any BRRD Undertaking (as such term is defined under
the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom
Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA
Handbook (as amended from time to time) promulgated by the United Kingdom
Financial Conduct Authority, which includes certain credit institutions and investment
firms, and certain affiliates of such credit institutions or investment firms.
“
UK Resolution Authority
” means Bank of England or any other public administrative
authority having responsibility for the resolution of any UK Financial Institution.
[*****]
“
Uncommitted Standby Letter of Credit Facility
” means an uncommitted standby letter
of credit in an aggregate principal amount at any time outstanding not to exceed
$100,000,000, as such amount may be reduced from time to time pursuant to the
terms hereof.
[*****]
“
U.S.
” means United States of America.
“
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.
“
Write-Down and Conversion Powers
” means, (a) with respect to any EEA Resolution
Authority, the write-down and conversion powers
of such EEA Resolution Authority from
time to time under the Bail-In Legislation for the applicable EEA Member Country, which
write-down and conversion powers are described in the EU Bail-In Legislation Schedule,
and (b) with respect to the United Kingdom,
any powers of the applicable Resolution
13
Confidential
Authority
under the Bail-In Legislation to cancel, reduce, modify or change the form of a
liability of any UK Financial Institution
or any contract or instrument under which that
liability arises, to convert all or part of that liability into shares, securities or obligations of
that person or any other person, to provide that any such contract or instrument is to
have effect as if a right had been exercised under it or to suspend any obligation in
respect of that liability or any of the powers under that Bail-In Legislation that are related
to or ancillary to any of those powers.
2.
LETTER OF CREDIT FACILITY.
(a)
General.
At the request of the Account Party, Bank agrees, on and subject to the
terms and conditions of this Agreement, to issue (i) standby Letters of Credit for the
account of the Account Party in Dollars under the Committed Standby Letter of
Credit Facility from time to time and (ii) in its sole discretion and solely to the extent
the Committed Standby Letter of Credit Facility has been utilized in full, standby
Letters of Credit for the account of the Account Party in under the Uncommitted
Standby Letter of Credit Facility from time to time, in each case during the period
from the Closing Date to but not including the Commitment Termination Date. The
request to issue a Letter of Credit (an “
Application
”) shall be in such form as Bank
shall from time to time require or agree to accept (including any type of electronic
form or means of communication acceptable to Bank) and, upon the receipt of any
Application, Bank shall process such Application in accordance with its customary
procedures and shall, subject to
Section
4
, promptly issue the Letter of Credit
requested thereby (but in no event shall Bank be required to issue any
Letter of
Credit
earlier
than
three
Business
Days
after
its
receipt
of
the
Application
therefor) by issuing the original
of such Letter of Credit to the beneficiary thereof or as otherwise may be
agreed
by
Bank
and
the
Account
Party.
Inquiries,
communications
and
instructions
(whether written, facsimile or in other electronic form approved by Bank) regarding a
Letter of Credit, an Application and this Agreement are each referred to herein as
“
Instructions
”.
Bank’s
records
of
the
content
of
any
Instruction
will
be
conclusiv
e,
absent manifest error.
Further, except
as required by the terms of this
Agreement, and except as may be provided in a Letter of Credit or otherwise
specifically agreed to in writing by Bank in its sole discretion, Bank shall have no duty
to: (i) issue a replacement Letter of Credit on or before the expiry date of any Letter
of Credit or the end of such term; (ii) issue or refrain from issuing any notice, if a
Letter Credit permits it to do so, of its election to terminate or cancel the Letter
Credit prior to its stated expiry date; (iii) issue or refrain from issuing any notice of its
election to refuse to reinstate the amount of any drawing under a Letter of Credit; or
(iv) otherwise amend or modify a Letter of Credit.
(b)
General Payment Obligations.
For each Letter of Credit, the Account Party shall, as
to
clause (i)
below,
reimburse
Bank,
and
as
to
all
other
clauses
below,
pay
Bank,
in each
case in Dollars (unless Bank agrees otherwise with Account Party):
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Confidential
(i)
with respect to a drawing under any Letter of Credit, the amount of each
drawing paid by Bank thereunder (such date of payment hereinafter referred to
as the “
Draw Date
”) no later than the first succeeding Business Day after the
Account Party’s receipt of notice of such payment by Bank (the “
Due Date
”),
with
interest as provided below on the amount so paid by Bank (to the extent
not reimbursed prior to 2:00 p.m. Eastern Time on the Draw Date) for the
period from the Draw Date to the date the reimbursement obligation created
thereby is satisfied in full (the “
Payment Date
”). If the Payment Date is on or
prior to the Due Date, such interest shall
be
payable
at
the
Base
Rate as
in
effect
from
time
to
time
during
the period from the Draw Date to the Payment Date. If the Payment
Date is after the Due Date, such interest shall be payable (x) as provided in the
preceding sentence during the period from and including the Draw Date to and
not including the Due Date, and (y) at the Base Rate as in effect from time to
time plus 2% from and including the Due Date to and not including the
Payment Date;
(ii)
[*****]
(iii)
except as otherwise provided in clause (i) above and clause (iv) below,
interest on
each amount
payable
by
the
Account
Party
under
the
applicable
Credit
Documents for each
day
from
and
including
the
date
such
payment
is
due
to and
not
including the date of payment, on demand, at a rate per annum
equal to the Base Rate as in effect from time to time plus 2%;
(iv)
within ten (10) days of demand, Bank’s documented out-of-pocket costs and
expenses (including the reasonable and documented legal fees, charges and
disbursements of outside counsel to Bank incurred in connection with the
protection or enforcement of Bank’s rights against
the Account Party under this
Agreement and the other applicable Credit Documents and any correspondent
bank’s documented
charges
related
thereto),
with
interest
from
the
date
of
demand by Bank to and not including the date of payment by the Account Party,
at a rate per annum equal to the Base Rate as in effect from time to time
plus
2%;
(v)
if as a result of any Change in Law, Bank determines that the cost to Bank of
issuing or maintaining any Letter of Credit is increased (excluding, for purposes
of this clause (a)(v), any such increased costs resulting from (A) income taxes,
franchise
taxes
and
similar
taxes
imposed
on
Bank
by
any
taxing
authorit
y, any U.S.
federal withholding taxes imposed under FATCA
and Other Taxes (in
each case as
to
which
Section
2(c)
shall
govern)
and
(B)
changes
in
the
basis
of
taxation of overall net income or overall gross income by the U.S. or by
the foreign jurisdiction or state under the laws of which Bank is organized or has
its lending office or any political subdivision thereof), then the Account Party
will pay to Bank, from time to time, within ten (10) days after demand by Bank,
which
15
Confidential
demand shall
include
a
statement
of
the
basis
for
such
demand
and
a
calculation
in reasonable detail of the amount demanded, additional amounts
sufficient to compensate Bank for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Account Party by Bank, shall be
conclusive and binding for all purposes, absent manifest error; and
(vi)
if Bank determines that any Change in Law affecting Bank or any lending office
of Bank or Bank’s holding company regarding capital or liquidity requirements
has or would have the effect of reducing the rate of return on Bank’s
capital or
on the capital of Bank’s holding company as a consequence of this Agreement
or the Letters of Credit issued by Bank to a level below that which Bank or
Bank’s holding company could have achieved but for such Change in Law (taking
into consideration Bank’s or its holding company’s
policies with respect to
capital adequacy), then from time to time the Account Party will pay to Bank
within
ten (10) days after demand by Bank, which demand shall include a
statement of the basis for such demand and a calculation in reasonable detail of
the amount
demanded, such
additional
amount
or
amounts
as
will
compensate
Bank
or
Bank’s holding company
for
any
such
reduction
suffered.
A
certificate
as
to
such
amounts submitted to the Account Party by Bank shall be conclusive
and binding for all purposes, absent manifest error. Bank shall use reasonable
efforts to designate a different lending office if such designation will avoid (or
reduce the cost to the Account Party of) any event described in the preceding
sentence and such designation will not, in Bank’s
good faith judgment, subject
Bank to any unreimbursed cost or expense and would not otherwise be
disadvantageous to Bank.
Notwithstanding the provisions of clause (v) or (vi) above or
Section
2(c)
below
(and without limiting the immediately preceding paragraph), Bank shall not be
entitled to compensation from the Account Party for any amount arising prior to
the date which is 180 days before the date on which Bank notifies the Account
Party of such event or circumstance (except that if such event or circumstance is
retroactive, then such 180-day period shall be extended to include the period of
retroactive effect thereof).
Any payments received
by
Bank
pursuant
to
the
Credit
Documents after 1:00
p.m. Eastern shall be deemed to have been made on the next succeeding
Business Day for all purposes under the Credit Documents.
(c)
Immediately Available Funds; No Withholding.
All reimbursements and payments by or
on behalf of the Account Party shall be made in immediately available funds, free and
clear of and without deduction for any present or future Taxes, set-off
or other
liabilities, to such location as Bank may reasonably designate from time to time. The
Account Party shall pay all withholding taxes and Other Taxes
imposed by any taxing
authority on
reimbursement or
payment
under
any
Letter
of
Credit
and
any
Credit
Document,
a
nd
shall indemnify Bank against all liabilities, costs, claims and expenses resulting from
Bank having to
pay
or
from
any
omission
to
pay
or
delay
in
paying
any
such taxes,
except
to
the extent that such taxes are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the
16
Confidential
gross negligence or willful misconduct of Bank. Any such indemnification payment shall
be made within ten (10) days from the date Bank makes written demand therefor.
“
Taxes
” means all taxes, fees, duties, levies, imposts, deductions, charges or
withholdings of any kind (other than income taxes, franchise taxes and similar taxes
imposed on Bank by any taxing authority and any U.S. federal withholding taxes
imposed under FATCA).
“
Other Taxes
” means all present or future stamp, documentary,
excise, property or similar taxes, charges or levies that arise from any payment made
hereunder or from the execution, delivery or registration of,
performance under, or
otherwise with respect to, this Agreement or any other Credit Document.
(d)
Automatic Debit and Set-Off.
Upon the occurrence and during the continuance of any
Event of Default with respect to the Account Party,
Bank (which term shall include
Bank’s branches and affiliates for purposes of this paragraph) may
(but shall not be
required to), without demand for reimbursement or payment or notice to the Account
Party,
and in addition to any other right of set-off that Bank may have, debit any
account or accounts, irrespective of the currency of such account or accounts,
maintained by
the
Account
Party
with
any
office
of
Bank
(now
or
in
the
future)
and
set-off and apply (i) any
balance or deposits (general, special, time, demand, provisional, final, matured or
absolute) in the account(s) and (ii) any sums due or payable from Bank, to the payment
of any and all Obligations owed by the Account Party to Bank, irrespective of whether
Bank shall have made any demand under this Agreement and although such Obligations
may be contingent or unmatured.
Bank agrees promptly to notify the Account
Party after
any
such
set-off
and
application;
provided,
however,
that
the
failure
to
give
such
notice shall not affect the validity of such set-off and application.
(e)
Obligations Absolute.
The Account Party’s reimbursement and payment obligations
under this
Section
2
are absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever,
including, without limitation:
(i)
any lack of validity, enforceability or legal effect
of any Letter of Credit or any
Credit Document or any term or provision therein;
(ii)
payment
against
presentation
of
any
draft,
demand
or
claim
for
payment
under
any Letter of Credit or other document presented for purposes of
drawing under any Letter of Credit (individually,
a “
Drawing Document
” and
collectively, the “
Drawing
Documents
”) that does not comply in whole or in
part with the terms of the applicable Letter of Credit or which proves to be
fraudulent, forged or invalid in any respect or any statement
therein proving to
be untrue or inaccurate in any respect, or which is signed, issued or presented
by a Person or a transferee
of such
Person
purporting
to
be
a
successor
or
transferee
of
the
beneficiary
of
such Letter of Credit;
(iii)
Bank or any of its branches or affiliates being the beneficiary of any Letter of
Credit;
17
Confidential
(iv)
Bank
or
any
correspondent
bank
honoring
a
drawing
against
a
Drawing
Document up to the amount available under any Letter of Credit even if such
Drawing Document claims an amount in excess of the amount available under
such Letter of Credit;
(v)
the
existence
of
any
claim,
setoff,
defense
or
other
right
that
Account
Part
y
or
any other Person may have at any time against any beneficiary or any
assignee of proceeds, Bank or any other Person;
(vi)
if any other Person shall at any time have guaranteed or otherwise agreed to be
liable for any of the Obligations or granted any security therefor,
any change in
the time, manner or place of payment of or any other term of the obligations of
such other Person, or any exchange, change, waiver,
release of, or failure or
lapse of perfection of any grant of any collateral for,
or any other Person’s
guarantee of or other liability for,
any of the Obligations;
(vii)
any replacement, extension or modification of each Letter of Credit or waiver of
discrepancies authorized by the Account Party;
(viii)
any agreement by Bank or any beneficiary of any Letter of Credit extending or
shortening Bank’s time after presentation to examine documents or to honor or
give notice of discrepancies shall be deemed to not reduce or impair the
Account Party’s Obligations
;
(ix)
any
other
event,
circumstance
or
conduct
whatsoever,
whether or not
similar
to
any of the
foregoing
that
might,
but
for
this
Section
2
(e)
,
constitute
a
legal
or
equitable defense to or discharge of, or provide a right of set-off
against, the Obligations, whether against Bank, the beneficiary or any
other Person;
provided,
however,
that
subject
to
Section
5(b)
below,
the
foregoing
shall
not
release
Bank from such liability to the Account Party as may be determined by a court
of competent
jurisdiction by
a
final
and
nonappealable
judgment
against
Bank
following
reimbursement and/or payment of the Obligations.
(f)
Computation of Interest and Fees; Maximum Rate.
All computations of interest and
fees to
be
made
hereunder
and
under
any
other
Credit
Document
shall
be
made
o
n
the
basis of a year consisting of (i) in the case of interest determined with reference
to the Base Rate, 365/366
days,
as
the
case
may
be,
or
(ii)
in
all
other
instances,
360
days;
and
in
each case under (i) and (ii), for the actual number of days elapsed
(including the first day but excluding the last day) occurring in the period for which such
interest or fee is payable. In no contingency or event whatsoever shall the aggregate of
all amounts deemed interest
under this
Agreement
charged
or
collected
pursuant
to
the
terms
of
this
Agreement
exceed the highest rate permissible under any applicable law
18
Confidential
which a court of competent jurisdiction shall, in a final determination, deem applicable
hereto. In the event that such a court determines that
Bank has charged or received
interest hereunder in excess of the highest applicable rate, the rate
in effect hereunder
shall automatically be reduced to the maximum rate
permitted
by
applicable
law
and
Bank
shall
at
its
option
(i)
promptly
refund to the Account Party any interest received
by Bank in excess of the maximum lawful rate or (ii) apply such excess to any
outstanding Obligations. It is the intent hereof that the Account Party not pay or
contract to pay,
and that Bank not receive or contract to receive, directly or indirectly in
any manner whatsoever,
interest in excess of that which may be paid by the Account
Party under applicable law.
(g)
Expiry Date of Letters of Credit
. Each Letter of Credit shall expire at or prior to the
earlier of
(i)
the
close
of
business
on
the
date
one
year
after
the
date
of
the
issuance
of such Letter of Credit (or, in the case of any renewal or extension thereof,
one
year after such renewal or extension), or (ii) the Commitment Termination
Date; provided,
however,
if the Account
Party so
requests
in
any
applicable
Application,
Bank
agrees
to
issue
a
Letter
of
Credit
that provides for the automatic extension for successive periods
of one year or less until Bank shall have
delivered
prior
written
notice
of
non-
extension to
the
beneficiary
of
such
Letter
of Credit (a “
Notice of Non-Extension
”) no
later than 60 days prior to the stated maturity date specified in such Letter of Credit
(such time, the “
Non-Extension
Notice
Date
”).
The Account Party
acknowledges
that
Bank
shall
not
be
required
to
extend
any
Letter of
Credit if Bank has determined that it would
have no obligation at such time to issue such Letter of Credit (as extended) under the
terms hereof.
(h)
Permanent Reduction of Commitment.
The Account Party shall have the right at any
time and from time to time, upon at least three Business Days’ prior irrevocable written
notice to Bank, to permanently reduce, without premium or penalty, (i) the entire
Commitment at any time or (ii) portions of the Commitment, from time to time, in an
aggregate principal amount not less than $3,000,000 or any whole multiple of
$1,000,000 in excess
thereof.
[*****]
3.
ACCOUNT
PARTY’S
RESPONSIBILITY
.
The
Account
Party
is
responsible
for
approving
the final text of any Letter of Credit issued by Bank for its account, irrespective of any assistance
Bank may provide such as drafting or recommending text or by Bank’s use or refusal to use text
submitted by the Account Party.
The Account Party is solely responsible for the suitability of the
Letter of Credit for the Account Party’s purposes. The Account Party will examine the copy of each
Letter of Credit issued for its
account and
any
other
documents
sent
by
Bank
in
connection
with
such
Letter
of
Credit
and
shall
promptly notify Bank in writing of any non-compliance with the Account
19
Confidential
Party’s Instructions and of any discrepancy in any document under any presentment or other
irregularity. The Account Party understands
that the final form
of any
Letter
of
Credit
may
be
subject
to
such
revisions
and
changes
as
are
deemed
necessary
or
appropriate by Bank in
accordance with standard industry practice and the Account Party hereby consents to such revisions
and changes.
4.
CONDITIONS OF CLOSING AND
ISSUANCE.
(a)
Conditions Precedent to Closing.
The obligation of Bank to close this Agreement
and to issue any Letters of Credit on the Closing Date is subject to the satisfaction of
each of the following conditions:
(i)
Executed Credit Documents
. This Agreement, together with any other
applicable Credit Documents, shall have been duly authorized, executed
and delivered to Bank by the parties thereto, shall be in full force and effect
and no Default or Event of Default shall exist hereunder or thereunder.
(ii)
Closing
Certificates;
Etc.
Bank
shall
have
received
each
of
the
following
in
form and substance reasonably satisfactory to Bank:
(A)
Officer’s Certificate
. A certificate from a Responsible Officer of
the
Account Party
to
the
effect
that
(I)
all
representations
and
warranties
of
the
Account
Party contained in
this
Agreement
and
the
other
Credit
Documents
are
true,
correct
and
complete in all material respects (except to the extent any
such representation and warranty is qualified by materiality or reference to
Material Adverse Effect, in which case such representation
and warranty shall be
true, correct and complete in all respects); and (II) as of the Closing Date, no Default
or Event of Default has occurred and is continuing.
(B)
Certificate of Secretary of the Account Party
. A certificate of a
Responsible Officer
of
the
Account
Party certifying as
to
the
incumbency
and
genuineness of the
signature
of
each
officer
of
the
Account
Party
executing
Credit
Documents
to
which
it
is
a
party
and
certifying
that
attached
thereto
is
a
true,
correct
and
complete
copy
of (I) the memorandum of
association (or equivalent), as applicable, of the Account Party and all amendments
thereto, certified as of a recent date by the appropriate Governmental Authority in
its jurisdiction of incorporation, organization or formation (or equivalent), as
applicable, (II)
the
by-laws
or
other
governing
document
of
the
Account
Party
as
in
effect on the Closing Date, (III) resolutions duly adopted by the board of
directors (or other governing body) of the Account Party authorizing and approving
the transactions contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Credit Documents to which it is a
party, and (IV) each certificate required to be delivered pursuant
to
Section
4(a)(ii)(C)
.
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(C)
Certificates of Good Standing
. Certificates as of a recent date of
the good standing of the Account Party under the laws of its jurisdiction of
incorporation, organization or formation (or equivalent), as applicable, and, to the
extent requested by Bank, each other jurisdiction where the Account Party is
qualified to do
business.
(D)
Opinions of Counsel
. Opinions of counsel to the Account Party
addressed to
Bank
with
respect
to
the
Account
Party,
the Credit
Documents
and
such
other matters as Bank shall request (which such opinions shall expressly
permit reliance by permitted successors and assigns of Bank).
The Account Party
requests that such counsel deliver such opinions.
(iii)
[Reserved]
(iv)
Consents;
Defaults
.
(A)
Governmental and Third Party Approvals
. The Account Party shall
have received all material governmental, shareholder and third party consents and
approvals necessary (or any other material consents as determined in the reasonable
discretion of Bank) in connection with the transactions contemplated by this Agreement
and the other Credit Documents and all applicable waiting periods shall have expired
without
any
action
being
taken
by
any
Person
that
would
reasonably
be
expected
to
restrai
n, prevent or impose any material adverse conditions on the Account Party or such
other transactions or that could seek or threaten any of the foregoing, and no law or
regulation shall be applicable which in the reasonable judgment of Bank would
reasonably be expected to have such effect.
(B)
No Injunction, Etc
. No action, proceeding or investigation shall have
been instituted, threatened in writing or proposed in writing before any Governmental
Authority to enjoin, restrain, or prohibit, or to obtain substantial damages in respect of,
or which is related to or arises out of this Agreement or the other Credit Documents or
the
consummation of
the
transactions
contemplated
hereby
or
thereby,
or
which,
in
Bank’s
sole discretion, would
make
it
inadvisable
to
consummate
the
transactions
contemplated
by
this Agreement or the other Credit Documents or the consummation
of the transactions contemplated hereby or thereby.
(v)
[Reserved]
(vi)
Miscellaneous
.
(A)
PATRIOT
Act, etc
. The Account Party shall have provided to Bank the
documentation and other information requested by Bank in order to comply with
requirements of any Anti-Money Laundering Laws, including, without limitation, the
PATRIOT
Act and any applicable “know your customer” rules and
regulations.
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(B)
Other Documents
. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall
be
satisfactory in
form
and
substance
to
Bank.
Bank
shall
have
received
copies
of
all other documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.
(b)
Conditions Precedent to Issuance of Letters of Credit
. The obligation of Bank to issue
Letters of Credit (including any Letters of Credit issued on the Closing Date) is subject to
the satisfaction of each of the following conditions:
(i)
Continuation of Representations and Warranties.
The representations and
warranties contained in this Agreement and the other Credit Documents
shall be true and correct in all material respects, except for any representation
and
warranty that is qualified by materiality or reference to Material Adverse
Effect, which such representation and warranty
shall be true and correct in all
respects, on and as of such
issuance
with
the
same
effect
as
if
made
on
and
as
of
such
date
(except
for
any such representation
and
warranty
that
by
its
terms
is
made
only
as
of
an
earlier
date, which representation and
warranty shall remain true and correct in all material respects as of such earlier
date, except for any representation
and warranty that is qualified by materiality
or reference to Material Adverse Effect,
which such
representation and
warranty
shall
be
true
and
correct
in
all
respects
as
of
such
earlier date).
(ii)
No Existing Default
. No Default or Event of Default shall have occurred and be
continuing on
the
issuance
date
with
respect
to
such
Letter
of
Credit
or
aft
er
giving effect to the issuance of such Letter of Credit on such date.
(iii)
[*****]
(iv)
Miscellaneous
. In addition to the foregoing, Bank shall be under no obligation
to issue any Letter of Credit if:
(A)
any
order,
judgment
or
decree
of
any
Governmental
Authority
or
arbitrator having jurisdiction over Bank shall by its terms enjoin or restrain the issuance
of such Letter of Credit or any law applicable to Bank, or any request or directive
(whether or not having the force of law) from any Governmental Authority with
jurisdiction over it shall prohibit, or request that it refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall impose upon it with
respect to such Letter of Credit any restriction or reserve or capital or liquidity
requirement (for which Bank is not otherwise
compensated) not
in
effect
on
the
Closing
Date,
or
any
unreimbursed
loss,
cost
or
expense which was not applicable or in effect as of the Closing Date and
which Bank in good faith deems material to it;
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(B)
Bank
shall
have
delivered
a
Notice
of
Non-
Extension
with
respect
to
such Letter of Credit;
(C)
the expiry date of such Letter of Credit would occur more than twelve
months after the date of issuance or last extension unless Bank has approved such
expiry date in writing;
(D)
the expiry date of such Letter of Credit occurs after the Commitment
Termination Date,
unless Bank has approved such expiry date in writing;
(E)
such
Letter
of
Credit
is
not
substantially
in
form
and
substance
reasonably acceptable to Bank;
(F)
[*****]
(G)
any proposed beneficiary of such Letter of Credit is the subject of a
receivership or similar proceeding, including any conservation, rehabilitation, or
liquidation proceeding, or is otherwise insolvent.
5.
INDEMNIFICATION; LIMITATION
OF
LIABILITY.
(a)
Indemnification.
The Account Party agrees to indemnify and hold harmless Bank
(including its
branches
and
affiliates),
its
correspondent
banks
and
each
of
thei
r
respective directors, officers, employees, attorneys and agents (each, including
Bank, an “
Indemnified Person
”) from and against any and all claims, suits,
judgments, liabilities,
losses, fines,
damages,
penalties,
interest,
costs
and
expenses
(including
expert
witness
fees and reasonable out-of-pocket
legal fees, charges
and disbursements of any counsel (including outside counsel fees and expenses),
and all expenses of arbitration or litigation
and in
preparation
thereof),
in
each
case,
which
are
documented
and
may
be
incurred
by
or awarded against any
Indemnified Person (collectively, the “
Costs
”), and which arise out of or in
connection with or by reason of this Agreement, the other Credit Documents, the
actual or proposed use of the proceeds of the Letters of Credit or any of the
transactions contemplated thereby,
including any Costs which arise out of or in
connection with, or as a result of:
(i)
any Letter of Credit or amendment thereto, or any pre-advice of the issuance
of a Letter of Credit;
(ii)
any transfer,
sale, delivery, surrender or endorsement of any Drawing
Document at any time(s) held by any Indemnified Person in connection with
any Letter of Credit;
(iii)
any
actual
or
prospective
action
or
proceeding
arising
out
of,
or
in
connection
with, any Letter of Credit or any Credit Document (whether
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administrative, judicial or in connection
with
arbitration,
whether
based
on
contract,
tort
or
any
other
theory, and whether brought by a third party
or by the Account Party, and regardless
of whether any Indemnified Person is
a party thereto), including any action or proceeding to compel or restrain any
presentation or payment under any Letter of Credit, or for the wrongful
dishonor of, or honoring a presentation under,
any Letter of Credit;
(iv)
any independent undertakings issued by the beneficiary of any Letter
of Credit;
(v)
any unauthorized Instruction or error in computer or electronic transmission
in connection with any Letter of Credit issued hereunder;
(vi)
an adviser, confirmer or other nominated person seeking to be reimbursed,
indemnified or compensated in connection with any Letter of Credit issued
hereunder;
(vii)
any third party seeking to enforce the rights of the Account Party,
beneficiary,
nominated person,
transferee,
assignee
of
Letter
of
Credit
proceeds
or
holder
of
an instrument or document in connection with any Letter of Credit
issued
hereunder;
(viii)
the fraud, forgery or illegal action of parties other than any Indemnified
Person in connection with any Letter of Credit issued hereunder;
(ix)
Bank’s performance of the obligations of a confirming institution or entity
that
wrongfully dishonors
a
confirmation
in
connection
with
any
Letter
of
Credi
t
issued hereunder;
(x)
the
acts
or
omissions,
whether
rightful
or
wrongful,
of
any
present
or
future
de
jure
or
de facto
Governmental Authority or cause or event beyond
the control of such Indemnified Person in connection with any Letter of Credit
issued hereunder;
(xi)
the enforcement of this Agreement or any other Credit Document or any
rights or remedies under or in connection herewith or therewith or any Letter
of Credit; or
(xii)
any claim, action, civil penalty or fine against, any settlement, and any other
kind of loss or liability, and all reasonable costs and expenses (including
reasonable counsel fees and disbursements) incurred by Bank as a result of
any conduct by you or your partners, directors, officers, employees, agents or
advisors, that violates any Sanctions;
in each
case,
including
that
resulting
from
Bank’s
own
negligence;
provided,
howeve
r, that
such indemnity shall not be available to any Person claiming indemnification
under this
Section
5(a)
to the extent that such Costs (A) are determined by a court of
competent jurisdiction by a final and nonappealable judgment to have resulted from the
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gross negligence or willful misconduct of such Person, (B) are determined by a court of
competent jurisdiction
by
a
final
and
nonappealable
judgment
to
have
resulted
from
a
claim by the Account Party against an Indemnified Person for breach in bad faith of
the
obligations of
such
Indemnified
Person
hereunder
or
under
any
other
Credit
Docu
ment,
or (C) result from any dispute solely between or among Indemnified Persons. The
Account Party hereby agrees to pay Bank within fifteen (15) days after demand from
time to time all amounts owing under this Section 5(a). This indemnity provision shall
survive termination of this Agreement and all Letters of Credit.
(b)
Direct Damages; No Punitive Damages
. The liability of Bank (or any other Indemnified
Person) under,
in
connection
with
and/or
arising
out
of
any
Credit
Document
or
a
ny Letter of Credit (or pre-advice), regardless of the form or legal grounds of the action
or proceeding, shall be limited to direct damages suffered by the Account Party that are
determined by a court of competent jurisdiction by a final and nonappealable judgment
to have been
caused
directly
by
Bank’s
gross
negligence,
willful
misconduct
or
breach
in bad faith in
(i)
honoring
a
presentation
under
a
Letter
of
Credit
that
on
its
face
does
not
at
least substantially comply with the terms and
conditions of such Letter of Credit, (ii) failing to honor a presentation under a Letter of
Credit that strictly complies with the terms and conditions of such Letter of Credit or (iii)
retaining Drawing Documents presented under a Letter of Credit. Bank shall be deemed
to have acted with due diligence and reasonable care if Bank’s conduct is in accordance
with Standard Letter of Credit Practice or in accordance with any Credit Document. No
Indemnified Person shall be liable for any damages arising from any errors, omissions,
interruptions or delays in transmission or delivery of any message, advice or document
(regardless of how sent or transmitted) in connection with this Agreement or the other
Credit Documents, except to the extent that any losses, claims, damages, liabilities or
expenses result from the gross negligence or willful misconduct of such Indemnified
Person in making any such transmission as determined by a final nonappealable
judgment of a court of competent jurisdiction.
(c)
Waiver of Consequential Damages, etc
.
Notwithstanding anything to the contrary in
this Agreement or in any other Credit Document, no Indemnified Person shall be liable
in contract, tort or otherwise for any punitive, exemplary,
consequential, indirect or
special damages or losses regardless of
whether or
not
such
party
or
Indemnified
Person
shall
have
been
advised
of
the
possibility thereof or the form of action in which such
damages or losses may be claimed. The Account Party
shall
take
commercially
reasonable
action
to
avoid
and
mitigate
the
amount of any damages claimed against
Bank or any other Indemnified Person, including by enforcing its rights in appropriate
proceedings diligently pursued in the underlying transaction.
(d)
No Responsibility or Liability
. Without limiting any other provision of this Agreement or
any other Credit Document, Bank and each other Indemnified Person (if applicable)
shall not
be
responsible
to
the
Account
Party
for,
and/or
Bank’s
rights
and
remedie
s
against the Account Party and the Obligations shall not be impaired by:
25
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(i)
honor of a presentation under any Letter of Credit that on its face
substantially complies with the terms and conditions of such Letter of
Credit, even if the Letter of Credit requires strict compliance by
the beneficiary;
(ii)
acceptance as a draft of any written or electronic demand or request for
payment under a Letter of Credit, even if nonnegotiable or not in the form
of a draft;
(iii)
the identity or authority of any presenter or signer of any Drawing
Document or the form, accuracy, genuineness or legal effect
of any Drawing
Document (other than Bank’s determination that such Drawing Document
appears on its face to substantially comply with the terms and conditions of
the Letter of Credit);
(iv)
acting upon any Instruction that it in good faith believes to have been given
by a Person authorized to give such Instructions;
(v)
any errors in interpretation of technical terms or in translation;
(vi)
any
acts,
omissions
or
fraud
by,
or
the
solvency
of,
any
beneficiary,
any
counter-guarantor,
any
nominated person or entity or any other Person,
other than an Indemnified
Person;
(vii)
any
breach
of
contract
between
the
beneficiary
and
the
Account
Party
or any
of
the parties to the underlying
transaction;
(viii)
payment to any paying or negotiating bank (designated or permitted by
the
terms of the applicable Letter of Credit) claiming that it rightfully honored
or is entitled to reimbursement
or
indemnity
under
Standard
Letter
of
Credit
Practice
applicable to it;
(ix)
acting as required or permitted, or failing to act as permitted, in each case
under Standard Letter of Credit Practice applicable to where it has issued,
confirmed, advised or negotiated such Letter of Credit, as the case may be;
(x)
dishonor of any presentation that does not strictly comply or that is
fraudulent, forged or otherwise not entitled to honor;
(xi)
honor
of
a
presentation
that
is
subsequently
determined
by
Bank
to
ha
ve been
made
in violation
of
international,
federal,
state
or
local restrictions
on
the
transaction
of business with certain prohibited
Persons; or
(xii)
amending a Letter of Credit to reflect any change of address or other
contact information of any beneficiary.
26
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(e)
Within 15 Business Days after the Closing Date, the Account Party shall pay to Bank or
its designee all reasonable and documented costs and expenses incurred by Bank as of
the Closing Date (including the reasonable fees and expenses of counsel) in connection
with this Agreement, the other Credit Documents and the transactions contemplated
hereby.
6.
REPRESENTATIONS
AND
WARRANTIES
.
The Account Party hereby represents and
warrants to Bank (all of which representations and warranties will be repeated as of the date of
each new Application submitted by the Account Party to Bank and as of the date of issuance of any
Letter of Credit requested in each such Application) as follows:
(a)
Organization, etc.
It is duly organized or formed, validly existing and (to the
extent
applicable
under
the
laws
of
the
relevant
jurisdiction)
in
good
standing
under
the laws
of
the
jurisdiction
of
its
organization
or
formation,
and
is
duly
qualified
or
licensed to do
business
(and
in
good
standing
as
a
foreign
corporation
or
entity,
if
applicable)
in
all jurisdictions in which such qualification or licensing is
required or in which the failure to so qualify or to be so licensed would have a
Material Adverse Effect.
It does not have any Subsidiaries.
(b)
Power
and
Authority.
It
has
the
requisite
power
and
authority
to
execute and
deliver this Agreement and each other Credit Document to which it is a party and to
perform and observe the terms and conditions stated herein and therein, and it has
taken all necessary corporate or other action to authorize its execution, delivery
and performance of each such Credit Document.
(c)
Valid and Binding Obligation.
This Agreement constitutes, and each other Credit
Document when signed and delivered by it to Bank will constitute, its legal, valid
and
binding obligation, enforceable against it in accordance with its terms, except as
enforceability may be limited by bankruptcy,
insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights against it generally,
by
general equitable principles or by principles of good faith and fair dealing, and
assuming
that
this
Agreement
and
each
such
other
Credit
Document
have
been
validly executed and delivered by each party thereto other than the
Account Party.
(d)
No Violation or Breach.
Its execution, delivery and performance of each Credit
Document to which it is a party and the payment of all sums payable by it under
each such Credit Document do not and will not: (i) violate or contravene its
memorandum of association, by-laws or other organizational documents; (ii) violate
or contravene any order,
writ, law, treaty,
rule, regulation or determination of any
Governmental Authority, in each case applicable to or binding upon it or any of its
property, the
violation
or
contravention
of
which
would
have
a
Material
Adverse
Effect;
or
(iii) result
in
the
breach
of
any
provision
of,
or
in
the
imposition
of
any
Lien
or
encumbrance (except for
Liens
or
encumbrances
created
under
the
Credit
Documents)
under,
or
constitute a default or event of default under,
any
agreement or arrangement to which it is a party or by which it or any of its property
27
Confidential
is bound, the contravention of which agreement or arrangement would have a
Material Adverse Effect.
(e)
Approvals.
No authorization, approval or consent of, or notice to or filing with, any
Governmental Authority is required to be made by it in connection with the
execution and delivery by it of any Credit Document to which it is a party or the
issuance by Bank of any Letter of Credit for the account of the Account Party
pursuant to this Agreement and the related Application, except for those which
have been duly obtained, taken, given or made and are in full force and effect; and
except where
failure to
obtain
the
foregoing
could
not
reasonably
be
expected
to
have
a
Material
Adverse Effect.
(f)
Compliance with Laws.
It is in compliance with all applicable laws
and regulations,
except where the noncompliance with which would not have a Material Adverse
Effect, and no Application, Letter of Credit or transaction of the Account Party
under any Credit Document to which it is a party will contravene any laws,
treaties,
rules or regulations of any Governmental Authority, including any foreign
exchange control laws or regulations, U.S. foreign
assets control laws or regulations
or currency
reporting
laws
and
regulations,
now
or
hereafter
applicable
to
it,
except
where
the noncompliance with which would not have a Material Adverse Effect.
(g)
No Default Under Other Agreements.
It is not in default under any agreement,
obligation or duty to which it is a party or by which it or any of its property is bound,
which would have a Material Adverse Effect.
(h)
No Arbitration Proceeding or Litigation.
There is no pending or, to the knowledge of
the Account Party, threatened
arbitration proceeding, litigation or action against
it
which (i) is reasonably likely to have a Material Adverse Effect or (ii) may affect
the legality, validity or enforceability of this Agreement or the other
Credit Documents.
(i)
Anti-Corruption Laws; Anti-Money Laundering Laws and
Sanctions
.
(i)
None of (i) the Account Party or, to the knowledge of the Account Party,
any of its directors,
officers, or
employees,
or
(ii)
any
agent
or
representative
of
the Account Party that will act in any capacity in connection with this
Agreement, (A)
is
a
Sanctioned
Person
or
currently
the
subject
or
target
of
any inquiry, claim, action, suit, proceeding or investigation against it
with respect to
Sanctions, (B)
is
controlled
by
or
is
acting
on
behalf
of
a
Sanctioned
Person
or (C) is located, organized or resident in a country or
territory that is, or whose government is, the subject of Sanctions, in a
manner that would result in the violation of applicable Sanctions by any
party hereto.
28
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(ii)
The Account Party has implemented and maintains in effect policies and
procedures designed to ensure compliance by the Account Party and its
directors, officers and employees with
all
applicable
Anti-
Corruption
Laws,
Anti-Money
Laundering Laws and Sanctions.
(iii) The Account Party and, to the knowledge of the Account Party, each
director,
officer, employee and agent of the Account Party,
is in compliance
with the PATRIOT
Act and all applicable Anti-Corruption Laws, Anti-Money
Laundering Laws (including the Foreign Corrupt Practices Act), and
Sanctions in all material respects.
(iv)
No proceeds of any Letter of Credit have been used, directly or indirectly,
by the Account Party or, to the knowledge of the Account Party,
any of its
directors, officers, employees and agents in violation of
Section
7(h)
.
(v)
The preceding provisions of this
Section 6(i)
and the provisions of
Section
7(h)(ii)
and
Section 7(j)
will not apply to any party hereto to which the EU
Blocking Regulation applies, if and to the extent that such provisions are or
would be unenforceable pursuant to, or would otherwise result in a breach
or violation of, (i) any provision of the EU Blocking Regulation (or any law or
regulation implementing the EU Blocking Regulation in any member state of
the European Union) or (ii) any similar blocking or anti-boycott law in effect
in the United Kingdom.
(j)
Filed All Tax Returns and Paid All Taxes.
It has filed all required tax returns, and all
Taxes,
assessments and other governmental charges due from it have been fully paid,
except for Taxes
which are being contested in good faith or those which the failure to
file or pay would not have a Material Adverse Effect. It has established on its books
reserves adequate for the payment of all federal, state
and other income tax
liabilities, including those being contested in good
faith.
(k)
Financial Statements.
The financial statements most recently furnished to Bank by
the Account Party fairly present in all material respects the financial condition of
the Account Party as at the date of such financial statements and for the periods
then ended in accordance with GAAP (except as disclosed therein and, in the case of
interim financial statements for any fiscal quarter,
subject to normal year-end
adjustments and except that footnote and schedule disclosure may be abbreviated),
and there has been no material adverse change in the Account Party’s business or
financial condition or results of operations since the date of the Account Party’s
most recent annual financial statements.
(l)
[*****]
(m)
Margin Stock.
It is not engaged principally or as one of its activities in the business
of extending credit for the purpose of “purchasing” or “carrying” any “margin stock”
(as each such term is defined or used, directly or indirectly, in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds of any
29
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Letters of Credit will be used for purchasing or carrying margin stock or for any
purpose which violates, or which would be inconsistent with, the provisions of
Regulation T,
U or X of such Board of
Governors.
(n)
No
Material
Adverse
Effect
.
There
has
been
no
Material
Adverse
Effect
since
December 31, 2021, and there exists no event, condition or state of facts that could
reasonably be expected to result in a Material Adverse Effect.
(o)
Investment Company
. It is not an “investment company” or a
company “controlled”
by an “investment company” (as each such term is defined or used in the
Investment Company Act).
(p)
Solvency
.
It is Solvent.
(q)
ERISA.
It does not have any direct obligation or direct liability in respect of any Plan
or Multiemployer Plan, and except as would not reasonably be expected to have a
Material Adverse Effect, no ERISA Affiliate thereof has any
obligation or liability in
respect of any Plan or Multiemployer Plan. With respect to its obligations to each
Plan, it is in compliance in all material respects with the applicable provisions of
ERISA and the Code and the regulations and published interpretations thereunder
and other federal or state laws.
No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, has had or could reasonably be
expected to result in a Material Adverse Effect.
(r)
Pari Passu.
Its obligations under this Agreement rank at least pari passu with all of
its other unsecured and unsubordinated debt payment obligations, present or
future, except for obligations mandatorily preferred
by law applying to companies
generally.
(s)
Disclosure
. No information furnished by the Account Party to Bank is or will be
materially false or misleading when furnished.
(t)
Legal Names.
Account Party’s exact legal name is as set forth on the signature
page(s) to this Agreement, and its correct mailing address is as set forth in this
Agreement.
(u)
Accuracy of Information
.
Any information, including financial statements or other
documents (other than projected or pro forma financial information), furnished by
it to Bank in connection with this Agreement or any amendment or modification
hereof or waiver hereunder, taken
as a whole and as of the date provided, contains
no material misstatement of fact or omits to state any material fact
necessary to
make the statements therein (taken
as a whole), in the light of the circumstances
under which they were made, not materially misleading; provided that, with respect
to projected or pro forma financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time of preparation and delivery (it being understood that
such projected information may vary from actual results and that such variances
may be material).
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Confidential
7.
AFFIRMATIVE COVENANTS
. Until all of the Obligations (other than contingent
indemnification obligations not then due) have been paid and satisfied in full in cash, all Letters of
Credit have been terminated or expired without any pending drawing thereon, and the
Commitment has been terminated, the Account Party covenants and agrees to the following:
[*****]
[*****]
(c)
Notice
of
Litigation
and
Other
Matters
.
Promptly
(but
in
no
event
later
than
ten
(10) days after any Responsible Officer of the Account Party becoming aware thereof), it shall
notify Bank in writing of:
(i)
the occurrence of any Default or Event of Default;
(ii)
the commencement of all proceedings and investigations by or before any
Governmental Authority
and
all
actions
and
proceedings
in
any
court
or
before any arbitrator against or involving the Account Party
or any of its respective
properties, assets
or
businesses
in
each
case
that
if
adversely
determined
would reasonably be expected to result in a Material Adverse Effect;
(iii) any
attachment,
judgment,
Lien,
levy
[*****]
that has been assessed against the Account
Party;
(iv)
upon the Account Party’s discovery of any claim, action, suit, proceeding, or investigation
pursuant to Sanctions against the Account Party,
its parent entity, or any of the Account Party’s
or
its parent’s respective directors, officers, or employees, notice of such inquiry,
claim, action, suit,
proceeding, and/or investigation and such details related to such inquiry,
claim, action, suit,
proceeding, and/or investigation that Account Party can reasonably provide;
(v) whether the Account Party, its parent entity,
or any of the Account Party’s or its parent’s
respective directors, officers, employees, agents or representatives has become a Sanctioned
Person;
(vi) any announcement by A.M. Best of any change in the Financial Strength Rating of the
Account Party;
(vii) any preferential or fraudulent transfer
or conveyance to anyone (including Bank and any
beneficiary of such Letter of Credit) under any applicable law, including Sections 544, 547, 548 or
550 of the United States Bankruptcy Code, as amended, declared as a result of the granting of any
collateral security for the Obligations, the issuance of a Letter of Credit, or the making of any
payment thereunder or the use of any proceeds thereof; and
(viii) such other occurrences, events, changes or matters as Bank may from time to time reasonably
request so long as such request is not subject to attorney/client privilege or other confidentiality
obligations and is prescribed by applicable law.
31
Confidential
Each notice pursuant to
Section 7
(c)
shall be accompanied by a statement of a Responsible Officer
of the Account Party, setting forth
details of the occurrence
referred to
therein
and
stating
what
action
the
Account
Party has taken
and
proposes
to take with
respect
thereto
and
shall
describe
with
particularity
any
and
all
provisions
of this Agreement and any other Credit Document that have
been breached.
[*****]
8.
FINANCIAL COVENANTS.
Until all of the Obligations (other than contingent indemnification
obligations not then due) have been paid and satisfied in full in cash, all Letters of Credit have been
terminated or expired, without any pending drawing thereon, and the Commitment terminated,
the Account Party covenants and agrees to the following:
(a)
Minimum Total Shareholder’s Equity
. The total shareholder’s equity of the
Account
Party,
determined
in
accordance
with
GAAP,
shall
be
at
all
times
an
amount
not
less than
[*****]
.
(b)
Financial Strength Ratings
. The Account Party shall at all times maintain a financial
strength rating by A.M. Best and shall not permit such rating to be lower than
“
[*****]
.”
9.
NEGATIVE
COVENANTS.
(a)
Negative Pledge
.
Account Party will not create, assume, incur, or otherwise permit
to exist any Lien on any Collateral, other than (i) Liens created pursuant to the
Credit Documents, and (ii) Liens of the Custodian with respect to the Custodial
Accounts and funds therein by operation of law or expressly consented to by Bank
in a Control Agreement.
(b)
Change in Nature of Business
.
It will not, at any time from the date hereof until the
Final Expiry Date, make any material change in the nature of its business as carried
on at the date hereof that could be reasonably expected to have a Material Adverse
Effect or enter into any
new line of business that is not similar, corollary,
related,
ancillary, incidental or complementary,
or a reasonable extension, development or
expansion thereof or ancillary thereto the business as carried on as of the date
hereof.
10.
EVENTS OF DEFAULT
. Each of the following shall be an “
Event of Default
” under this
Agreement:
(a)
Failure to Reimburse Draws.
The failure by the Account Party to reimburse or pay
any drawing under any Letter of Credit or accrued interest thereon on the Due
Date
therefor.
(b)
Failure to Pay Certain Other Amounts.
The failure by the Account Party to pay any
fee or other amount when due under or in connection with any Credit Document
32
Confidential
or any Letter of Credit within three (3) Business Days after the same shall become
due and payable.
(c)
Breach of Representation and Warranty.
Any representation, warranty,
certification or statement made or furnished by the Account Party under or in
connection with any Credit Document or as an inducement to Bank to issue a
Letter of Credit shall be false, incorrect or misleading in any material respect
when made (except to the extent any such representation,
warranty,
certification
or statement is qualified by materiality or reference to Material Adverse Effect,
in
which case, such representation, warranty,
certification or statement shall be true,
correct and complete in all respects).
(d)
[*****]
(e)
Failure to Perform or Observe Covenants.
(i)
The
Account
Party’s failure to
perform
or
observe
any
term,
covenant
or
agreement contained in
Sections
7(c)(i)
,
7(h)
or
8
;
or
(ii)
The
Account
Party’s
failure
to
perform
or
observe
any
term,
covenant
or agreement contained in any Credit Document (other than those referred
to in subsections (a), (b), (c), (d) and (e)(i) of this
Section
10
), and with
respect to any such failure or breach that by
its nature can be cured, such
failure or breach shall continue or remain unremedied for
thirty (30)
calendar days after the earlier of (1) Bank’s delivery of written notice
thereof to the Account Party,
and (2) the Account Party having actual
knowledge that such failure or breach has occurred.
(f)
Insolvency Proceedings, Etc.
The Account Party institutes or consents to the
institution of any proceeding under any Bankruptcy Law; or makes an assignment
for the benefit of creditors; or applies for or consents to the appointment of any
receiver,
trustee, custodian, conservator,
liquidator, rehabilitator
or similar officer
for it or for all or any material part of its property; or any receiver,
trustee,
custodian, conservator,
liquidator,
rehabilitator or similar officer is appointed
without the application or consent of the Account Party, and the appointment
continues undischarged, undismissed or unstayed for sixty (60) calendar days; or
any proceeding under any Bankruptcy Law relating to the Account Party
or
to
all
or
any
material
part
of
their respective property
is
instituted
without
the
consent of the Account Party,
and continues undischarged, undismissed or
unstayed for sixty (60) calendar days; or an order for relief is entered in any such
proceeding; or the Account Party becomes unable or admits in writing its inability
or fails generally to pay its debts as they become due.
(g)
Sale of Assets; Merger; Dissolution.
There shall occur in one or a series
of
transactions:
(i) the sale, assignment or transfer of all or substantially all of the
assets of the Account Party); (ii) a merger, amalgamation or consolidation
of the
Account Party without the prior written consent of Bank, except that the Account
Party may merge, amalgamate or consolidate with any Person
so long as the
33
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Account Party is the surviving entity
in
any
such
transaction;
or
(iii) the
dissolution of the Account Party.
(h)
Credit Documents
. Any provision of any Credit Document to which the Account
Party is a
party
shall
for
any
reason
cease
to
be
valid
and
binding
or
enforceable;
or
the
Account Party shall deny or disaffirm in writing the
enforceability of any provision of any Credit Document to which it is a party.
(i)
Security Documents
. Any Security Document to which the Account Party is a
party
shall for any reason (other than pursuant to the terms thereof) cease to
create in favor of Bank a valid and perfected first priority security interest in the
Collateral of the Account Party
purported to
be
covered
thereby;
or
Bank
shall
cease
for
any
reason
to
hold
a
perfected
first priority security
interest
in
the
Collateral
of
the
Account
Party;
or
the
Account
Party
or
any Person acting on
its behalf shall deny or disaffirm in writing the enforceability of any Security
Document.
(j)
Indebtedness Cross-Default
. The Account Party shall (i) default in the payment of
any Indebtedness (other than the Obligations and other than Indebtedness solely
among or between the Account Party and its affiliates) the aggregate principal
amount (including undrawn committed or available amounts), or with respect to
any Hedge Agreement, the Hedge Termination
Value, of which is in excess of the
Threshold Amount beyond the period of grace if any, provided in the instrument
or agreement under which such Indebtedness was created, or (ii) default in the
observance or performance of any other agreement or condition relating to any
Indebtedness (other than the Obligations and other than in respect of
Indebtedness solely among or between the Account Party and its affiliates) the
aggregate principal amount (including undrawn committed or available amounts),
or with respect to any Hedge Agreement, the Hedge Termination Value,
of which
is in excess of the Threshold Amount or contained in any instrument or
agreement evidencing, securing or relating thereto
or any other event shall occur
or condition exist other than in respect of an instrument, agreement, or condition
solely among or between the Account Party and its affiliates, the effect of which
default or
other
event
or
condition
is
to
cause
with
the
giving
of
notice
and/
or
lapse
of
time, if required, any such Indebtedness to (A) become due, or to be
repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an
offer to repurchase, prepay,
defease or
redeem
such
Indebtedness
to
be
made,
prior
to
its
stated
maturity
(any
applicable grace period
having
expired)
or
(B)
be
cash
collateralized
(it
being
understood
that
a
pledge of cash
collateral
by
the
Account
Party to secure
a
Hedge
Agreement
as
initial
or
variation
margin does not trigger a violation of this clause
(B)).
(k)
Judgment
.
One
or
more
judgments,
orders
or
decrees
(excluding those that
may be entered against the Account Party in any arbitration or litigation related
to
(re)insurance coverage disputes arising in the ordinary course of business involving
any reinsurance agreement (treaty or facultative), or direct insurance policy)
34
Confidential
shall
be
entered
or filed against the
Account Party by any court and continues
without having been dismissed, discharged, vacated or stayed within forty-five
(45) days
after
the
entry thereof or is not otherwise being appropriately
contested in good faith and such judgments, orders
or decrees are either (i) for
the payment of money, individually or in the aggregate (not paid or fully covered
by insurance as to which the relevant insurance company has acknowledged
coverage), equal to or in excess of the Threshold Amount or (ii) for injunctive relief
and
could
reasonably
be expected,
individually
or
in
the
aggregate,
to
have a
Material Adverse Effect.
(l)
Employee
Benefit
Matters
.
Except as would not reasonably be expected to result
in a Material Adverse Effect, any Lien shall be imposed on the assets of the
Account
Party under ERISA with respect to any Plan or under any foreign laws
similar to ERISA governing foreign pension plans.
(m)
Change in Control.
The occurrence of any Change in Control.
11.
REMEDIES
.
Upon the occurrence and during the continuance of any Event of
Default:
(a)
Bank may terminate the Commitment and declare all amounts owed to Bank under
this
Agreement or
any
of
the
other
Credit
Documents
and
all
other
Obligations,
to
be
forthwith due and payable, whereupon the same shall promptly become due
and payable without presentment, demand,
protest
or
other
notice
of
any
kind,
all
of
which
are
expressly
waived by the Account Party,
anything in this
Agreement or the other Credit Documents to the contrary notwithstanding;
provided, that upon the occurrence of an Event of Default specified in
Section
10(f)
,
the Commitment shall be automatically terminated and all Obligations shall
automatically become due and payable without presentment, demand,
protest or
other
notice
of
any
kind,
all
of
which
are
expressly
waived
by
the
Account
Party,
anything in this Agreement or
in any other Credit Document to the contrary notwithstanding.
(b)
Solely
with
respect
to
the
occurrence
of
an
Event
of
Default
under
Sections
10(a)
,
(b)
,
(d)
,
or
(f)
,
Bank may (i) demand that the Account Party deposit in the
Custodial Account an amount of cash equal to 102% of the aggregate Outstanding
Letters of Credit to be held and applied to the Obligations and/or (ii) terminate any
or all of the Letters of Credit or give Notices of Non-Extension in respect thereof, in
each case if permitted in accordance with their terms; provided that upon the
occurrence of an Event of Default specified
in
Section
10(f)
,
the
requirement
to
deliver
cash
collateralize
pursuant
to
the
foregoing
clause (i) in respect of all Outstanding
Letters of Credit shall automatically become due without demand or other notice of
any kind, all of which are expressly waived by the Account Party,
anything in this
Agreement or in any other Credit Document to the contrary notwithstanding. Such
cash collateral shall be applied by Bank to the payment of drafts drawn, and other
demands
for payments
made,
under
such
Letters of
Credit,
and
the
unused
portion
35
Confidential
thereof
after
all
such
Letters
of Credit shall have expired without any pending
drawing thereon, or been fully drawn upon, if any, shall be applied to repay the other
Obligations.
After all such Letters of Credit shall have expired without any pending
drawing thereon, or been fully
drawn upon, and
all
Obligations
shall
have
been
paid
in
full,
the
balance,
if
any,
in
such
Custodial Account shall be
returned to the Account Party.
(c)
Bank may exercise from time to time any of the rights, powers and remedies
available to Bank under any Credit Document to which the Account Party is a party,
under any other documents now
or
in
the
future
evidencing
or
securing
the
Obligations or
under
applicable law, and all such remedies shall be cumulative
and not exclusive.
12.
SUBROGATION
.
Without limiting any rights or remedies of Bank under applicable law, if
an Event of Default is continuing regarding the Account Party’s
obligation to reimburse
or pay any drawing under any Letter of Credit on the Due Date , Bank, at its option, shall
be subrogated to the Account Party’s rights against
any Person who may be liable to the
Account Party on any obligation underlying any Letter of Credit.
13.
TERM
OF
AGREEMENT
.
(a)
This
Agreement
shall
remain
in
effect
from
the
Closing
Date through and
including the date upon which all Obligations (other than contingent
indemnification obligations not then due) arising hereunder or under any other
Credit Document shall have been indefeasibly and irrevocably paid and satisfied in
full, all Letters of Credit have been terminated or expired without any pending
drawing thereon, and the
Commitment has
been
terminated.
No
termination
of
this
Agreement
shall
affe
ct the
rights
and
obligations
of the
parties
hereto
arising
prior
to
such
termination
or
in
respect
of
any
provision
of
this
Agreement
which survives
such termination.
(c)
Bank may notify Account Party at any time in its sole discretion that Bank intends
to terminate the Commitment (such date of notice, “
the Termination Notice
Date
”) and declare all amounts owed to Bank under this Agreement or any of the
other Credit
Documents
and all
other
Obligations to
be
due and payable on the
date that is two (2) years from the Termination
Notice Date, whereupon at such
time the same shall promptly become due and payable without further
presentment, demand
or other notice
of
any
kind,
all of
which
are
expressly
waived by the Account Party, anything in this Agreement or the
other Credit Documents to the contrary notwithstanding; provided, that upon the
occurrence of an Event of Default specified in
Section
10(f)
, the Commitment shall
be automatically terminated and all Obligations shall automatically become due
and payable without presentment, demand,
protest or
other
notice
of
any
kind,
all
of
which
are
expressly
waived
by
the
Account
Party,
anything in this Agreement or in any other Credit
Document to the contrary notwithstanding.
36
Confidential
[*****]
14.
USA PATRIOT
ACT; ANTI-MONEY LAUNDERING LAWS; FATCA
. Bank hereby notifies the
Account Party
that
pursuant
to
the
requirements
of
the
PATRIOT
Act
or
any
other
Anti-
Money
Laundering Laws, it is required to obtain, verify and record information that identifies the
Account Party,
which information includes
the
name
and
address
of
the
Account
Party,
identification number and/or corporate registration number,
and a copy of the Account Party’s
certificate of incorporation (or similar information if the Account Party is not a corporation)
and other
information
that
will
allow
Bank to identify
the
Account
Party
in
accordance
with
the
PATRIOT
Act
or
such
Anti-Money
Laundering
Laws. Bank complies with the Foreign
Account Tax
Compliance Act (FATCA)
as mandated by U.S. federal tax law and may withhold on
certain payments and disclose information to federal and state governments as required
by law.
15.
GOVERNING LAW; UCP; ISP; STANDARD
LETTER OF CREDIT PRACTICE
. Each Credit
Document and each Letter of Credit shall be governed by and construed in accordance with (a) in
the case of each Credit Document (other than the Letters of Credit), the substantive laws of New
York and (b) in
the case of each Letter of Credit, such Letter of Credit will be governed by and
construed in accordance with the governing law (if any) specified in such Letter of Credit, as
determined by Bank and the Account Party
(and which governing law may include the laws of a
particular jurisdiction and may include specification of ISP or UCP as the practice
rules to govern
such Letter of Credit), and if any such practice rules are specified in such Letter of Credit then they
are incorporated by reference into
this Agreement and shall control (to the extent not prohibited by
applicable law) to the extent of any conflict with the law applicable to such Letter of Credit. Unless
the Account Party specifies otherwise in its Application for a Letter of
Credit,
the Account Party
agrees that Bank may issue a Letter of
Credit
subject
to
the
ISP
or
UCP.
Bank’s privileges, rights and remedies under the ISP and UCP,
as
applicable, shall be in addition to, and not in limitation of, its privileges, rights, and remedies
expressly provided for herein. The ISP or UCP,
as applicable, shall serve, in the absence of proof to
the contrary, as evidence of Standard Letter
of Credit Practice with respect to matters covered
therein. To
the extent permitted by applicable law,
as between the Account Party and Bank, (i) this
Agreement shall prevail in case of conflict between this Agreement, the
UCC and/or
Standard
Letter
of Credit
Practice,
(ii)
the
ISP
shall
prevail
in
case
of
conflict
between
the
ISP and the UCC or other
Standard Letter of Credit Practice if the Letter of Credit is governed by the ISP,
and (iii) the UCP shall
prevail in case of a conflict between the UCP and the UCC or other Standard Letter of Credit Practice
if the Letter of Credit is governed by the UCP.
16.
CONSENT TO JURISDICTION AND VENUE
. THE ACCOUNT PARTY HEREBY CONSENTS TO
THE EXCLUSIVE JURISDICTION OF ANY STATE
COURT WITHIN NEW YORK COUNTY,
NEW YORK OR
ANY FEDERAL COURT LOCATED WITHIN THE SOUTHERN DISTRICT OF THE STATE
OF NEW YORK OR
ANY APPELLATE COURT THEREOF FOR ANY PROCEEDING INSTITUTED HEREUNDER OR UNDER ANY
OF THE OTHER CREDIT DOCUMENTS, OR ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS, OR ANY PROCEEDING TO WHICH BANK
OR THE ACCOUNT PARTY IS A PARTY,
INCLUDING ANY ACTIONS BASED UPON, ARISING OUT OF, OR
IN CONNECTION WITH
ANY
COURSE
OF
CONDUCT,
COURSE
OF
DEALING,
STATEMENT
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF BANK
OR PROCEEDING TO WHICH BANK OR THE
ACCOUNT PARTY IS A PARTY.
BANK AND THE ACCOUNT PARTY IRREVOCABLY
AGREE TO BE BOUND
(SUBJECT TO ANY AVAILABLE RIGHT OF APPEAL) BY ANY JUDGMENT RENDERED OR RELIEF
37
Confidential
GRANTED THEREBY AND FURTHER WAIVES ANY OBJECTION THAT IT MAY
HAVE BASED ON LACK OF
JURISDICTION OR IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY
SUCH PROCEEDING. BANK AND THE ACCOUNT PARTY IRREVOCABLY
AGREE THAT SERVICE OF
PROCESS MAY BE DULY
EFFECTED UPON IT BY MAILING A COPY THEREOF, BY
REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID,
TO IT AT
ITS ADDRESS SET FORTH OR REFERRED TO
IN
SECTION
19
BELOW.
NOTWITHSTANDING THE FOREGOING, NOTHING
IN THIS AGREEMENT SHALL AFFECT THE RIGHT OF
ANY PARTY TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR THE
RIGHT OF
BANK
TO
BRING
ANY
ACTION
OR
PROCEEDING
AGAINST
THE
ACCOUNT
PARTY OR
ITS PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
17.
WAIVER OF JURY TRIAL
. TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE ACCOUNT
PARTY AND BANK KNOWINGLY
AND VOLUNTARILY
WAIVE ALL RIGHTS TO TRIAL BY JURY WITH
RESPECT TO ANY LITIGATION BASED ON, ARISING OUT OF,
OR RELATING TO ANY CREDIT
DOCUMENT OR LETTER OF CREDIT, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING,
STATEMENTS
(ORAL OR WRITTEN) OR ACTIONS OF THE ACCOUNT PARTY OR BANK WITH RESPECT
THERETO. THIS WAIVER IS A MATERIAL
INDUCEMENT FOR BANK TO ISSUE LETTERS OF CREDIT.
18.
BANKRUPTCY AND FORFEITURE REINSTATEMENT
. If any consideration transferred
to Bank
in payment of, or as collateral
for,
or in satisfaction of the Obligations, shall be voided in whole
or in
part as a result of (a) a subsequent bankruptcy or insolvency proceeding; (b) any forfeiture or
seizure
action or
remedy;
(c)
any
fraudulent
transfer
or
preference
action
or
remedy;
or
(d)
any
othe
r
civil,
criminal or equitable proceeding or remedy, then Bank’s claim to recover
the voided
consideration shall be a new and independent claim arising under the applicable Credit Document
and shall be due and payable immediately by the Account Party under the terms of the
Credit Documents.
19.
NOTICES
.
Unless
otherwise
expressly
provided
herein,
all
notices, Instructions,
approvals, requests, demands, consents and other communications provided for hereunder
(collectively, “
notices
”) shall be in writing (including by facsimile or other electronic transmission
approved by Bank). All notices shall be sent by regular U.S. mail or registered or certified mail
prepaid, by facsimile or other electronic transmission approved by Bank, by hand delivery,
by
Federal Express
(or other comparable domestic or international delivery service) prepaid to the
applicable address,
facsimile
number
or
electronic
mail
address
set
forth
on the signature page
hereof in the case of the Account Party. All notices to Bank (including notices by email, if Bank
approves of receiving notices by email) shall be directed to Bank at:
Nordea Bank Abp, New York Branch
Credits Administration Department,
1211 Avenue of the Americas, Floor 23
New York, New York
10036
Attention: Racquel Breg / Sonia Earle
Email:
dlny-ny-cadloan@nordea.com
;
racquel.breg@nordea.com
;
sonia.e@nordea.com
Telephone: (212) 318-9582 / (212) 318-9596
Facsimile:
212-318-9318
38
Confidential
Bank may, but shall not be obligated to,
require authentication of any electronic transmission.
Notices sent by hand,
Federal Express
(or other comparable domestic or international delivery
service) or registered or certified mail shall be deemed to have been given when received; notices
sent by regular U.S. mail shall be deemed to have been received five (5) days after deposit into the
U.S. mail; notices sent by facsimile or other electronic transmission shall be deemed to have been
given upon receipt by sender of a transmission confirmation or read receipt (and notices sent by e-
mail shall be deemed received and effective upon the sender’s receipt of an acknowledgement from
the intended recipient (such as by the “return receipt requested” function, as available, return e-
mail or other written acknowledgement)); provided that if such notice via facsimile transmission or
e-mail is not sent during the normal business hours of the recipient, such notice
shall be deemed to
have been sent at the opening of business on the next business day for the recipient.
The Account
Party or Bank may change its address (including email addresses) for
notices by
notifying
the
other
of
the
new
address
in
any
manner
permitted
by
this
Section.
The Account
Party irrevocably consents
that service of process may be made by registered or certified mail directed to it at the address of
its agent for service of process, Seon Place, 4th floor, 141 Front Street, Hamilton HM19, Bermuda.
20.
WAIVER AND AMENDMENTS
. No modification, amendment or waiver of, or consent to any
departure by Bank or the Account Party from, any provision of any Credit Document will be
effective unless made in a writing signed by the Account Party (in the case of Bank) or Bank (in the
case of the Account Party and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. No party’s consent to any amendment, waiver or
modification shall mean that such party will consent or has consented to any other or subsequent
request to amend, modify or waive a
term of
any
Credit
Document.
No
delay
by
any
party
in
exercising
any
of
its
rights
or
remedies
shall
operate
as a
waiver,
nor
shall
any
single
or
partial
waiver
of
any
right
or
remedy
preclude
any
other
further
exercise of that right or remedy,
or the exercise
of any other right or
remedy.
21.
SUCCESSORS AND ASSIGNS
. Each Credit Document to which the Account Party is a party will be
binding on the Account Party’s successors and permitted assigns, as applicable, and shall inure to the
benefit of the respective successors and permitted assigns of the Account Party and Bank. Except as
provided in the last sentence of this
Section
21
,
Bank may assign its rights and obligations under each
Credit Document, including its rights to reimbursement regarding any Letter of Credit, in whole or in
part, with the Account Party’s consent;
provided
that
the
Account
Party
shall
be
deemed
to
have
consented
to
any
such
assignment unless it objects by written notice to Bank within ten (10)
Business Days after having received notice thereof; and,
provided
further,
that
the
Account
Party’s
consent
to
an
assignment
to
any
Person
shall
not
be required if (i) the assignment is to an
affiliate of Bank or (ii) an Event of Default has occurred and is continuing. Bank may sell to one or
more Persons participations in or to all or a portion of its rights and obligations under
the
Credit
Documents
without
the
Account
Party’s
consent.
Any
assignment
in
violation of this
Section
21
shall be void. The Account Party shall not assign or transfer any of its interests, rights or remedies
related
to
any
Credit
Document,
in
whole
or
in
part,
without
the
prior
written
consent
of
Bank
. Any Person to whom Bank delegates its obligation to issue a Letter of Credit must be a bank, or a
branch or affiliate, that is on the List of Qualified U.S. Financial Institutions maintained by the
Securities Valuation Office of the National Association of Insurance Commissioners.
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22.
SEVERABILITY
. Whenever possible, each provision of each Credit Document shall be
interpreted in
a
manner
as
to
be
effective
and
valid
under
applicable
law,
but
if
any
provisio
n
of
any
Credit Document shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or any remaining provisions of such Credit Document.
23.
ENTIRE AGREEMENT.
This Agreement, together with the other Credit Documents and any
other agreement, document or instrument referred to herein, constitute the final, exclusive and
entire agreement and understanding of, and supersede all prior or contemporaneous, oral
or
written, agreements, understandings, representations and negotiations between, the parties
relating to the subject matter of the Credit Documents, provided that this Agreement shall not
supersede any reimbursement agreement (however titled) that has been entered into specifically
with respect to any “direct pay” standby letter of
credit or
other
similar
standby
letter
of
credit
where
the
terms
of
such
reimbursement
agreement
have
been drafted to specifically address the particular
attributes of, or the particular circumstances of the underlying transaction supported by,
such
standby letter of credit.
24.
SURVIVAL
.
All covenants, agreements, representations and warranties made by the Account
Party herein and in the other Credit Documents and in the certificates or other
instruments
delivered in connection with or pursuant to this Agreement or any other Credit
Documents 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 of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf and notwithstanding
that Bank may have had notice or knowledge of any Event of 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 fee or any other amount payable under this
Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the
Commitments have not expired or terminated.
The provisions of Sections 2(c) and 5 shall survive
and remain in full force and effect regardless of the consummation of the transactions
contemplated hereby,
the expiration or termination of the Letters of Credit and the Commitments
or the termination of this Agreement or any provision hereof.
25.
INTERPRETATION;
HEADINGS.
In this Agreement, (a) the term “including” means
“including
without limitation”; (b) the terms “will” and “shall” shall have the same meaning, (c) unless the
context requires otherwise, references herein to Sections shall be construed to refer
to Sections of
this Agreement; and (d) references to any laws, rules, or regulations include any amendments
thereto or successor or replacement laws, rules, or regulations.
The captions and section headings
appearing herein are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Agreement
26.
COUNTERPARTS; ELECTRONIC EXECUTION
.
This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument.
Delivery
of an executed signature page of this Agreement by any electronic means that reproduces an image
of the actual executed signature page shall be effective as delivery of a manually executed
counterpart hereof.
27.
NO FIDUCIARY DUTY,
ETC.
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Confidential
(a)
The Account Party acknowledges and agrees that Bank will not have any obligations except
those obligations expressly set forth herein and in the other Credit Documents and Bank is acting
solely in the capacity of an arm’s length contractual counterparty to the Account Party with respect
to the Credit Documents and the transactions contemplated herein and therein and not as a
financial advisor or a fiduciary to, or an agent of, the Account Party or any other Person.
The
Account Party agrees that it will not assert any claim against Bank based on an alleged breach of
fiduciary duty by Bank in connection with this Agreement and the transactions contemplated
hereby.
Additionally, the Account Party acknowledges and agrees that Bank is not advising the
Account Party as to any legal, tax, investment, accounting, regulatory or any other matters
in any
jurisdiction.
The Account Party shall consult with its own advisors concerning such matters and shall
be responsible for making its own independent investigation and appraisal of the transactions
contemplated herein or in the other Credit Documents, and Bank shall have no responsibility or
liability to the Account Party with respect thereto.
(b)
The Account Party further acknowledges and agrees that Bank, together with its branches
and affiliates, is a full service securities or banking firm engaged in securities trading and brokerage
activities as well as providing investment banking and other financial services.
In the ordinary
course of business, Bank may provide investment banking and other financial services to, and/or
acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other
securities and financial instruments (including bank loans and other
obligations) of, the Account
Party and other companies with which the Account Party may have commercial or other
relationships.
With respect to any securities and/or financial instruments so held by Bank or any of
its customers, all rights in respect of such securities and financial instruments, including any voting
rights, will be exercised by the holder of the rights, in its sole discretion.
(c)
In addition, the Account Party acknowledges and agrees that Bank and its affiliates may be
providing debt financing, equity capital or other services (including financial advisory
services) to
other companies in respect of which the Account Party may have conflicting interests regarding the
transactions described herein and otherwise.
Bank will not use confidential information obtained
from the Account Party by virtue of the transactions contemplated by the Credit Documents or its
other relationships with the Account Party in connection with the performance by Bank of services
for other companies, and Bank will not furnish any such information to other companies.
The
Account Party also acknowledges that Bank has no obligation to use in connection with the
transactions contemplated by the Credit Documents, or to furnish to the Account Party, confidential
information obtained from other companies.
28.
PRIVACY POLICY
.
Bank and its Affiliates may choose to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, email or other electronic method of transmission, telex or telephone message, statement
or other document or conversation reasonably believed in good faith by it to be genuine and correct
and to have been signed, sent, or made by a proper person or persons acting for or on your behalf
or any of your affiliates.
Account Party agrees that Bank and its Affiliates may transmit data to
Account Party and its Affiliates via an electronic method of transmission, including over the internet,
via email or via a website, notwithstanding that no data transmission over the internet, email or a
website can be guaranteed to be secure from intrusion.
Account Party agrees that Bank may share
information received from Account Party with its Affiliates and, if so requested, its regulators and as
required to comply with federal, state or local laws, or official court orders,
as well as foreign laws
41
Confidential
applicable to Bank and its Affiliates; it being understood and agreed that Bank may share any such
information (including without limitation, non-public personally identifiable information of Account
Party and its representatives) with third party service providers in the ordinary course of business,
subject to the confidentiality obligations set forth in Section 29.
Information about how Bank will handle personal data can be found in the Privacy Policy at the
following link:
d
.
29.
CONFIDENTIALITY
. Bank agrees at all times (a) to use the information provided by the Account
Party and its affiliates in connection with this Agreement (the “Information”) solely for purposes of
the letter of credit facility described in this Agreement, (b) to keep the Information strictly
confidential and not directly or indirectly disclose or make it accessible to any third party in any
manner, without the Account Party’s
prior written consent, and (c) to protect the Information with
the same degree of protection and care Bank uses to protect its own confidential information, but
not less than a reasonable degree of care. Notwithstanding the foregoing, the Account Party agrees
that Bank may share Information with (i) Bank’s affiliates
and Representatives who have a need to
know in connection with this Agreement (so long as such persons are subject to confidentiality
obligations in respect of such Information and Bank shall be responsible to Account Party for any
breach of confidentiality obligations
by its Representatives), and (ii) Bank’s regulators
and any
governmental or regulatory authority or stock exchange and as required to comply with federal, state
or local laws, or official court orders, or any regulation or judicial or governmental order,
subpoena or
other legal process,
as well as to comply with foreign laws applicable to Bank and its affiliates. Bank
may also share such Information with third party service providers in the ordinary course of business
(so long as such service providers are subject to confidentiality obligations in respect of such
information). Bank shall notify the Account Owner immediately upon discovery of any unauthorized
use or disclosure of Information and will cooperate with efforts by the Account Owner and/or its
affiliates to help regain possession of such Information and prevent its further unauthorized use.
Information does not include any information which (i) is or becomes generally available other than
as a result of a disclosure by Bank, (ii) is already in Bank’s or any of Bank’s Representatives’
possession free and clear of any obligation of confidentiality, (iii) is or becomes rightfully available on
a non-confidential basis to Bank or any of Bank’s Representatives from a source other than Borrower
or its representatives, (iv) is independently developed by Bank or on Bank’s behalf without violating
any of Bank’s obligations hereunder and without any use of,
reference to or reliance on the
Information or (v) is released or disclosed with the consent of Borrower or its representatives.
“Representatives” collectively includes Bank’s affiliates
or the directors, officers, employees,
accountants, agents, advisors, insurers, insurance broker,
direct or indirect provider of credit
protection and attorneys of Bank or Bank’s affiliates, who each has a need to know such information
in connection with this Agreement.
30.
ACKNOWLEDGEMENT AND CONSENT TO BAIL-IN OF AFFECTED FINANCIAL
INSTITUTIONS
.
Notwithstanding anything to the contrary in any Credit Document or in any other
agreement, arrangement or understanding among any such parties, each party hereto
acknowledges that any liability of any Affected Financial Institution arising under any Credit
Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution
Authority and agrees and consents to, and acknowledges and agrees to be bound by:
42
Confidential
(a)
the application of any Write-Down and Conversion Powers by the applicable Resolution
Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that
is an Affected Financial Institution; and
(b)
the effects of any Bail-In Action on any such liability, including, if applicable:
(i)
a reduction in full or in part or cancellation of any such liability;
(ii)
a conversion of all, or a portion of, such liability into shares or other
instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge
institution that may be issued to it or otherwise conferred on it, and that such shares or other
instruments of ownership will be accepted by it in lieu of any rights with respect to any such
liability under this Agreement or any other Credit Document; or
(iii)
the variation of the terms of such liability in connection with the exercise of
the Write-Down
and Conversion Powers of the applicable Resolution Authority.
[SIGNATURE PAGE
FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have
duly executed and delivered this Standby Letter of
Credit as of the date first set forth above.
ACCOUNT PARTY
:
EVEREST
REINSURANCE
(BERMUDA), LTD.
By:
______________________________
_
Name:
Title:
Address for Notices:
Seon Place, 4
th
floor
141 Front Street
Hamilton HM19 Bermuda
BANK
:
NORDEA BANK ABP,
NEW YORK BRANCH
By:
________________________________
Name:
Title:
By:
________________________________
Name:
Title:
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[*****]
45
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