1
Confidential
Exhibit 10.42
Execution Version
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
(Committed/Unsecured)
STANDBY
 
LETTER OF CREDIT
 
AGREEMENT (the
 
“
Agreement
”), dated
 
as of
 
December
 
30, 2022,
 
by
 
and
 
among
EVEREST
 
REINSURANCE
 
(BERMUDA),
 
LTD.,
 
a company
 
incorporated
 
and existing
 
under the
 
laws
 
of Bermuda
(the “
Account
 
Party
”), and BAYERISCHE LANDESBANK,
NEW YORK BRANCH, the New York Branch of a financial
institution organized
 
under the laws of the Federal Republic of Germany
 
(“
Bank
”).
1.
 
DEFINED TERMS.
(a)
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
“
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.
“
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.
 
2
Confidential
“
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,
 
the
 
highest
 
of
 
(a)
 
0.00%,
 
(b)
 
the
 
prime
 
rate
 
per
 
annum
established
 
by the
 
JPMorgan
 
Chase Bank,
 
N.A. as
 
the reference
 
rate
 
for short
 
term commercial
loans in Dollars, and (c) the NYFRB Rate plus 0.50%;
 
each change in the Base Rate shall take effect
simultaneously with the corresponding change or changes
 
in the rate specified in
 
clause (b) above
or the NYFRB Rate.
“
Business Day
” means (i)
 
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 and (ii)
 
when used in
 
connection with
 
a Letter of
 
Credit denominated in
 
a Foreign
Currency, such day is also a day
 
on which banks are
 
open for dealings in
 
deposits in such Foreign
Currency in the principal financial center for such
 
Foreign Currency.
“
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 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 Standard & Poor’s 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.
 
3
Confidential
“
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 December 30, 2022.
“
Code
”
 
means
 
the
 
Internal
 
Revenue
 
Code
 
of
 
1986,
 
and
 
the
 
rules
 
and
 
regulations
 
promulgated
thereunder.
“
Commitment
”
 
means
 
the
 
obligation
 
of
 
Bank
 
to
 
Issue
 
Letters
 
of
 
Credit
 
for
 
the
 
account
 
of
 
the
Account Party hereunder in an aggregate principal amount at any time outstanding
 
not to exceed
$150,000,000, as such amount may be reduced from
 
time to time pursuant to
 
the terms hereof.
[*****]
 
“
Commitment Termination
 
Date
” means
 
the earliest
 
to occur
 
of (a)
 
December 30,
 
2024, (b)
 
the
date of termination of the entire Commitment by the Account
 
Party pursuant
Section 2(h)
, and
(c) the date of termination of the Commitment
 
to
Section
“
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 Documents,
and
 
each
 
other
 
agreement,
 
document,
 
or
 
instrument
 
executed
 
and
 
delivered
 
by
 
the
 
Account
Party to the Bank in connection with any
 
Credit Document or any Letter
 
of Credit.
“
Default
”
 
means
 
any
 
of the
 
events
 
specified
 
in
Section
which
 
with
 
the
 
passage
 
of time,
 
the
giving of notice or any other condition, would
 
constitute an Event of
 
Default.
 
 
 
4
Confidential
“
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
 
Final
 
Maturity
 
Date;
 
provided,
 
however,
 
that
 
only
 
the
 
portion
 
of
 
Capital
 
Stock
 
that
 
so
matures or is mandatorily
 
redeemable, is so redeemable
 
at the option of the
 
holder thereof,
 
or is
so convertible or exchangeable on or prior to such date
 
shall be deemed to be Disqualified Capital
Stock.
“
Dollar Amount
” means, at any time, (i) with respect to any amount denominated in Dollars, such
amount, and (ii) with respect to any amount denominated in any Foreign
 
Currency, the equivalent
amount
 
thereof
 
in
 
Dollars
 
as
 
determined
 
by
 
Bank
 
at
 
such
 
time
 
on
 
the
 
basis
 
of
 
the
 
Spot
 
Rate
(determined in respect of the most recent Revaluation
 
Date) for the purchase of Dollars with such
Foreign Currency.
“
Dollars
” or “
$
” means dollars of the United States
 
of America.
“
Draw Date
” has the meaning specified in
Section
.
 
“
Due Date
” has the meaning specified in
Section
“
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.
 
5
Confidential
“
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
 
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.
 
“
Event of Default
” has the meaning specified in
Section
 
“
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.
“
Federal
 
Funds
 
Effective
 
Rate
” means,
 
for
 
any
 
day,
 
the rate
 
calculated
 
by
 
the NYFRB
 
based
 
on
such day’s federal
 
funds transactions by depositary
 
institutions, as determined in such
 
manner as
 
shall be set
 
forth on the NYFRB’s Website
 
from time to time,
 
and published on the
 
next succeeding
Business Day by the NYFRB as the effective
 
federal funds rate.
“
Final Expiry Date
” means the
 
date when the
 
Final Maturity 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.
“
Final Maturity Date
” means the first anniversary of
 
the Commitment Termination Date.
“
Financial
 
Strength
 
Rating
”
 
means,
 
as
 
to
 
any
 
Person,
 
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.
“
Foreign Currency
” means any currency other than Dollars approved
 
by Bank, in its sole discretion,
from time to time.
 
 
6
Confidential
“
Foreign Currency
 
Equivalent
” means,
 
at any
 
time, with
 
respect to
 
any amount
 
denominated in
Dollars, the
 
equivalent amount
 
thereof in the
 
applicable Foreign Currency as determined by Bank
at such time on the basis of the Spot Rate (determined in respect
 
of the
 
most recent
 
Revaluation
Date) for the purchase of such Foreign
 
Currency with Dollars.
 
“
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.
“
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, central bank
 
or other
 
entity exercising
executive,
 
legislative,
 
judicial,
 
taxing,
 
regulatory
 
or
 
administrative
 
powers
 
or
 
functions
 
of,
 
or
pertaining
 
to,
 
government
 
(including any
 
supra-
 
national
 
bodies such
 
as the
 
European
 
Union or
the European Central Bank).
[*****]
 
[*****]
 
“
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).
 
7
Confidential
“
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
 
reasonably and in good
 
faith by the board of directors
 
or other governing body
 
of
the 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
“
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
 
 
8
Confidential
“
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 such 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)
 
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
“
Notice of Non-Extension
” has the meaning given to such term in
Section
“
NYFRB
” means the Federal Reserve Bank of New
 
York.
 
“
NYFRB Rate
” means,
 
for any
 
day,
 
the greater
 
of (a)
 
the Federal
 
Funds Effective
 
Rate in
 
effect on
such day and (b) the Overnight Bank Funding Rate
 
in effect on such day (or for any
 
day that is not a
Business Day,
 
for the immediately
 
preceding Business Day);
provided
 
that if none of
 
such rates
 
are
published for
 
any day
 
that is
 
a Business
 
Day,
 
the term
 
“NYFRB Rate”
 
means the
 
rate
 
for a
 
federal
funds transaction
 
quoted at
 
11:00 a.m. on
 
such day
 
received by
 
Bank from
 
a federal
 
funds broker
of
 
recognized
 
standing
 
selected
 
by
 
it;
provided
,
further
,
 
that
 
if
 
any
 
of
 
the
 
aforesaid
 
rates
 
as
 
so
determined are less than zero, such rate shall be
 
deemed to be zero for purposes of
 
this Agreement.
 
“
NYFRB’s Website
” means the website of the NYFRB at
http://www.newyorkfed.org
, or any
successor source.
“
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
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.
 
9
Confidential
[*****]
 
“
Other Taxes
” has the meaning specified in
Section
“
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.
“
Overnight Bank
 
Funding Rate
” means, for
 
any day,
 
the rate
 
comprised of
 
both overnight
 
federal
funds and overnight eurodollar borrowings
 
denominated in Dollars by U.S.-managed banking
 
offices
of depository institutions, as such composite rate
 
shall be determined by the NYFRB as set forth on
the NYFRB’s Website
 
from time to time, and published on
 
the next succeeding Business Day by
 
the
NYFRB as an overnight bank funding rate.
“
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
“
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
 
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.
[*****]
 
“
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.
 
 
10
Confidential
“
Responsible
 
Officer
”
 
means,
 
as
 
to
 
any
 
Person,
 
the
 
chief
 
executive
 
officer,
 
president,
 
chief
financial officer,
 
controller,
 
treasurer or assistant
 
treasurer of such Person
 
or any 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.
“
Revaluation Date
” means with respect to any Letter of Credit, each of the
 
following: (i) each date
of issuance of
 
a Letter of
 
Credit denominated in
 
a Foreign Currency, (ii) each
 
date of an
 
amendment
of
 
any
 
such
 
Letter
 
of
 
Credit
 
having
 
the
 
effect
 
of
 
increasing
 
or
 
decreasing
 
the
 
Stated
 
Amount
thereof, (iii) each date of
 
any payment by Bank under
 
any Letter of
 
Credit denominated in
 
a Foreign
Currency and (iv) each such additional date as Bank shall determine or require.
“
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, His 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.
“
Sanctioned
 
Person
”
 
means,
 
at
 
any
 
time,
 
(a)
 
any
 
Person
 
listed
 
in
 
any
 
Sanctions-related
 
list
 
of
designated
 
Persons
 
maintained
 
by
 
OFAC
 
(including
 
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,
 
His 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.
 
11
Confidential
“
Spot Rate
” means, with respect to
 
any Foreign Currency, the rate quoted by Bank as the spot rate
for
 
the
 
purchase
 
by
 
Bank
 
of
 
such
 
Foreign
 
Currency
 
with
 
Dollars
 
through
 
its
 
principal
 
foreign
exchange trading office at
 
approximately 11:00 a.m., London time, on
 
the date two Business Days
prior to the date as of which the foreign exchange
 
computation
 
is made; provided
 
that Bank
 
may
use such spot
 
rate quoted
 
on the date
 
as of which
 
the foreign
 
exchange
 
computation is
 
made in
the case of any Letter of Credit
 
denominated in an Foreign Currency.
“
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).
“
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
.
 
“
Threshold Amount
” means $200,000,000.
“
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.
[*****]
 
“
U.S.
” means United States of America.
 
 
12
Confidential
“
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 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.
(b)
Exchange Rates; Currency Equivalents
.
(i)
 
The Bank shall determine
 
the Spot Rates as
 
of each Revaluation
 
Date to be used
 
for
calculating
 
Dollar
 
Amounts
 
of
 
Letters
 
of
 
Credit
 
denominated
 
in
 
Foreign
 
Currencies.
 
Such
 
Spot
 
Rates
 
shall
become effective as of such Revaluation Date
 
and shall be the Spot Rates employed in converting any
 
amounts
between
 
the applicable
 
currencies
 
until
 
the next
 
Revaluation
 
Date
 
to
 
occur.
 
Except
 
for purposes
 
of financial
statements
 
required
 
to
 
be
 
delivered
 
hereunder
 
or
 
calculating
 
financial
 
covenants
 
hereunder
 
and
 
except
 
as
otherwise
 
provided
 
herein,
 
the
 
applicable
 
amount
 
of
 
any
 
currency
 
(other
 
than
 
Dollars)
 
for
 
purposes
 
of
 
the
Credit Documents shall be such Dollar Amount as so
 
determined by Bank.
(ii)
 
Wherever
 
in
 
this
 
Agreement
 
in
 
connection
 
with
 
the
 
issuance,
 
amendment
 
or
extension
 
of a
 
Letter
 
of Credit,
 
an amount,
 
such as
 
a required
 
minimum or
 
multiple amount,
 
is expressed
 
in
Dollars, but
 
such Letter of
 
Credit is denominated
 
in a
 
Foreign Currency, such amount
 
shall be
 
the relevant Foreign
Currency Equivalent of such Dollar amount (rounded to the nearest unit of such Foreign Currency,
 
with 0.5 of a
unit being rounded upward), as determined
 
by Bank.
2.
 
LETTER OF CREDIT FACILITY.
 
13
Confidential
(a)
General.
At the
 
request of
 
the Account
 
Party,
 
Bank agrees,
 
on and subject
 
to the terms
 
and
conditions of this Agreement, to
 
issue standby Letters of Credit for the
 
account of the Account
Party in Dollars (or, in Bank’s sole discretion, a Foreign Currency) from time to time during the
period from
 
the Closing
 
Date to
 
but not
 
including the
 
Commitment Termination
 
Date. Bank
may,
 
in its sole
 
discretion, arrange
 
for one
 
or more
 
Letters
 
of Credit to
 
be issued
 
by its
 
New
York branch,
 
which branch is on the List of Qualified U.S.
 
Financial Institutions maintained by
the Securities Valuation Office
 
of the National Association of Insurance Commissioners,
 
or by
any other branch
 
or affiliate of
 
Bank that is
 
on the List
 
of Qualified U.S. Financial
 
Institutions
maintained
 
by
 
the
 
Securities
 
Valuation
 
Office
 
of
 
the
 
National
 
Association
 
of
 
Insurance
Commissioners, in which
 
case the term “Bank”
 
shall include any such
 
branch or affiliate
 
with
respect to
 
Letters
 
of Credit
 
issued by
 
such branch
 
or affiliate.
 
Letters
 
of Credit
 
may only
 
be
issued on Business Days.
 
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
, 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 conclusive, absent manifest error.
 
(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):
(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)
 
the fees payable by the Account
 
Party at such times and in such amounts as are set
 
forth
in
Section
(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%;
 
14
Confidential
(iv)
 
within ten (10) days
 
of demand, Bank’s
 
reasonable and 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
 
authority,
 
any
 
U.S.
 
federal
 
withholding
 
taxes
imposed under FATCA
 
and Other Taxes (in each case as to
 
which
Section
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 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
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.
 
 
 
15
Confidential
(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, and
 
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
 
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
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:
(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;
(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;
 
 
 
 
 
16
Confidential
(v)
 
the existence of any claim, set-off, defense
 
or other right that Account Party 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 other event,
 
circumstance or conduct
 
whatsoever, whether or not
 
similar to
 
any of the
foregoing that might,
 
but for this
Section 2
 
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
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
 
on
 
the
 
basis
 
of
 
a
 
year
consisting of 360 days, 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
 
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
Final
 
Maturity
 
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.
 
 
 
17
Confidential
(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.
 
All Commitment Fees accrued
until the effective date of any termination of the
 
Commitment shall
 
be paid on
 
the effective
 
date
of such
 
termination.
[*****]
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
 
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.
 
18
Confidential
(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 (D) each certificate
 
required to be delivered pursuant
 
to
Section 4(a)(ii)(C)
.
(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)
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
 
restrain,
 
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.
(iv)
 
[Reserved]
(v)
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
 
the
 
PATRIOT
 
Act
 
and
 
any
 
applicable
 
“know
 
your
customer” rules and regulations.
 
19
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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 after
 
giving
 
effect
 
to
 
the
issuance of such Letter of Credit on such date.
(iii)
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;
(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
 
Final
 
Maturity
 
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)
 
immediately
 
after
 
giving
 
effect
 
thereto,
 
the amount
 
of Outstanding
 
Letters
 
of
Credit would exceed the Commitment
 
or the Collateral Value
 
of the Collateral at such time; or
 
 
20
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(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 their
 
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 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
 
Credit
 
issued
hereunder; or
 
 
 
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Confidential
(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;
in each case,
 
including that resulting
 
from Bank’s
 
own negligence; provided,
 
however,
 
that
 
such
indemnity shall not be available to any
 
Person claiming indemnification
 
under this
Section
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 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 Document,
 
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
. 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
 
any 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
 
remedies against
 
the
 
Account
 
Party
 
and
 
the
Obligations shall not be impaired by:
(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;
 
 
22
Confidential
(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 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)
 
honor
 
of
 
a
 
presentation
 
after
 
the
 
expiration
 
date
 
of
 
any
 
Letter
 
of
 
Credit
notwithstanding
 
that
 
a
 
presentation
 
was
 
made
 
prior
 
to
 
such
 
expiration
 
date
 
and
dishonored
 
by
 
Bank
 
if
 
subsequently
 
Bank
 
or
 
any
 
court
 
or
 
other
 
finder
 
of
 
fact
determines such presentation
 
should have been honored;
(xi)
 
dishonor
 
of
 
any
 
presentation
 
that
 
does
 
not
 
strictly
 
comply
 
or
 
that
 
is
 
fraudulent,
forged or otherwise not entitled to honor;
 
(xii)
 
honor of a presentation that is
 
subsequently determined by Bank to have been
 
made
in violation
 
of international,
 
federal, state
 
or local restrictions
 
on the transaction
 
of
business with certain prohibited Persons; or
(xiii)
 
amending
 
a
 
Letter
 
of
 
Credit
 
to
 
reflect
 
any
 
change
 
of
 
address
 
or
 
other
 
contact
information of any beneficiary
(e)
 
Within
 
15
 
Business
 
Days
 
after
 
the
 
Closing
 
Date,
 
the
 
Account
 
Party
 
shall
 
pay
 
to
 
the
 
Bank
 
or
 
its
designee all reasonable and
 
documented costs and expenses incurred by
 
the 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:
 
23
Confidential
(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
 
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.
 
24
Confidential
(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 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.
 
(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 all
 
applicable Anti-
Corruption Laws, Anti-Money Laundering Laws 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
(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)
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
 
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.
 
 
25
Confidential
(m)
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.
(n)
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).
(o)
Solvency
.
 
It is Solvent.
(p)
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.
 
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:
[*****]
[*****]
(a)
 
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 or order exceeding the Threshold Amount
 
that
has been assessed against the Account Party;
 
and
(iv)
 
any announcement by A.M. Best of
 
any change in the Financial
 
Strength Rating of the
Account Party.
Each notice
 
pursuant
 
to
Section 7
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.
(b)
 
[Reserved.]
 
 
26
Confidential
(c)
 
Payment
 
of Taxes
 
and Other
 
Obligations
.
 
Except where
 
the failure
 
to pay
 
or perform such
items described in this Section would not reasonably be expected to have
 
a Material
 
Adverse
Effect,
 
it
 
will
 
pay
 
and
 
perform
 
all
 
taxes,
 
assessments
 
and other
 
governmental
 
charges
 
that
may
 
be levied
 
or assessed
 
upon it
 
or any
 
of its
 
property;
 
provided,
 
that it
 
may
 
contest
 
any
item described in this Section in good faith
 
so long as adequate reserves are
 
maintained with
respect thereto in accordance
 
with GAAP.
(d)
 
Compliance
 
with
 
Laws
 
and
 
Approvals
.
 
It
 
shall
 
observe
 
and
 
remain
 
in
 
compliance
 
in
 
all
material
 
respects
 
with
 
all
 
applicable
 
laws
 
and
 
maintain
 
in
 
full
 
force
 
and
 
effect
 
all
Governmental Approvals,
 
in each case applicable to the conduct of its business except
 
where
the failure to
 
do so
 
would not reasonably
 
be expected
 
to have a
 
Material Adverse Effect.
(e)
 
Maintenance of Books and
 
Records; Inspection
. It shall
 
(i) maintain adequate books, accounts
and records, in which full, true and correct entries in all material respects shall be made
 
of all
financial
 
transactions
 
in
 
relation
 
to
 
its
 
business
 
and
 
properties,
 
and
 
prepare
 
all
 
financial
statements
 
required
 
under
 
this
 
Agreement,
 
in
 
each
 
case
 
in
 
accordance
 
with GAAP
 
and in
compliance with the requirements of any Governmental
 
Authority having
 
jurisdiction over it,
and
 
(ii)
 
permit
 
employees
 
or
 
agents
 
of
 
Bank,
 
and
 
after
 
the
 
occurrence
 
and
 
during
 
the
continuance
 
of an
 
Event
 
of Default,
 
Bank, to
 
visit and
 
inspect its
 
properties and
 
examine or
audit its
 
books, records,
 
working papers
 
and accounts
 
and make
 
copies and
 
memoranda
 
of
them, and at
 
its own cost
 
and expense (other
 
than after the
 
occurrence of an
 
Event of Default),
and
 
to
 
discuss
 
its
 
affairs,
 
finances
 
and
 
accounts
 
with its
 
officers
 
and
 
employees
 
and,
 
upon
notice
 
to
 
it,
 
its
 
independent
 
public
 
accountants
 
(and
 
by
 
this
 
provision
 
it
 
authorizes
 
such
accountants
 
to discuss
 
its the
 
finances and
 
affairs),
 
all at
 
such times
 
that will
 
not materially
interrupt
 
or
 
interfere
 
with
 
the
 
operation
 
of
 
its
 
business
 
and
 
from
 
time
 
to
 
time,
 
upon
reasonable
 
notice and during business hours, as may be reasonably requested;
 
provided that
except
 
during
 
the
 
continuance
 
of
 
an
 
Event
 
of
 
Default
 
Bank
 
shall
 
not
 
exercise
 
such
 
rights
described in clause (ii) of this Section more than once per calendar year.
(f)
 
Use of Proceeds
.
 
It shall comply with the following:
(i)
 
The Account
 
Party
 
shall use
 
the Letters
 
of Credit
 
to
 
support
 
insurance
 
obligations,
obligations under
 
reinsurance agreements
 
and retrocession
 
agreements and
 
similar
risk obligations.
(ii)
 
The
 
Account
 
Party
 
shall
 
not
 
request
 
or
 
use
 
any
 
issued
 
Letter
 
of
 
Credit,
 
(i)
 
in
furtherance of
 
an offer,
 
payment,
 
promise to
 
pay,
 
or authorization
 
of the
 
payment
or giving of money,
 
or anything else
 
of value, to
 
any Person
 
in violation of
 
any Anti-
Corruption Laws, (ii) for
 
the purpose of
 
funding, financing or
 
facilitating any activities,
business
 
or
 
transaction
 
of
 
or
 
with
 
any
 
Sanctioned
 
Person,
 
or
 
in
 
any
 
Sanctioned
Country,
 
except
 
to
 
the
 
extent
 
permitted
 
for
 
a
 
Person
 
required
 
to
 
comply
 
with
Sanctions or (iii) in any
 
manner
 
that
 
would
 
result
 
in
 
the
 
violation
 
of
 
any
 
Sanctions
applicable to any party hereto.
(g)
Accuracy
 
of
 
Information.
 
It
 
will
 
ensure
 
that
 
any
 
information,
 
including
 
financial
statements or
 
other documents,
 
furnished by it
 
to Bank in
 
connection with this
 
Agreement or
any
 
amendment
 
or
 
modification
 
hereof
 
or
 
waiver
 
hereunder
 
contains
 
no
 
material
misstatement
 
of
 
fact
 
or
 
omits
 
to
 
state
 
any
 
material
 
fact
 
necessary
 
to
 
make
 
the
 
statements
therein,
 
in
 
the
 
light
 
of
 
the
 
circumstances
 
under
 
which
 
they
 
were
 
made,
 
not
 
materially
misleading, and the furnishing of such information shall be deemed to be a representation and
warranty by it on the date thereof
 
as to the matters specified
 
in this Section.
 
 
 
 
27
Confidential
(h)
 
Compliance with Anti-Corruption Laws; Anti-Money
 
Laundering Laws and Sanctions
. It shall
maintain in
 
effect and
 
enforce
 
policies and
 
procedures
 
designed to
 
ensure compliance
 
by it
and its directors, officers, employees
 
and agents with
 
all applicable
 
Anti-Corruption Laws, Anti-
Money Laundering Laws, and Sanctions.
(i)
 
Further Assurances.
It will
 
execute and deliver
 
to Bank
 
such additional
 
certificates, instruments
and/or documents and take such additional action as
 
may be reasonably requested by Bank
 
to
enable
 
Bank
 
to
 
issue
 
any
 
Letter
 
of
 
Credit
 
pursuant
 
to
 
this
 
Agreement
 
and
 
the
 
related
Application, to
 
protect, exercise
 
and/or enforce
 
Bank’s
 
rights and
 
interests under
 
any Credit
Document and/or to give effect
 
to the terms and provisions of any
 
Credit Document.
(j)
 
Maintenance
 
of
 
Existence.
 
It
 
shall
 
(i) maintain
 
its
 
entity
 
existence,
 
and
 
(ii) maintain
 
in
 
full
force
 
and
 
effect
 
all
 
licenses,
 
bonds,
 
franchises,
 
leases,
 
trademarks,
 
qualifications
 
and
authorizations
 
to
 
do
 
business,
 
and
 
all
 
patents,
 
contracts
 
and
 
other
 
rights
 
necessary
 
or
advisable to the
 
profitable conduct
 
of its businesses,
 
in each case except
 
where failure
 
to do
so could not reasonably be expected to have
 
a Material Adverse Effect.
(k)
 
Change in Nature of Business.
 
It shall 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.
(l)
 
Payment
 
of
 
Liabilities.
 
It
 
shall
 
pay
 
and
 
discharge,
 
in
 
the
 
ordinary
 
course
 
of
 
business,
 
all
obligations
 
and
 
liabilities
 
(including
 
tax
 
liabilities
 
and
 
other
 
governmental
 
charges),
 
except
where the
 
same may
 
be contested
 
in good
 
faith by
 
appropriate
 
proceedings
 
and for
 
which
adequate reserves with
 
respect thereto have
 
been established in accordance
 
with GAAP and
except where the same could not
 
reasonably be expected to have
 
a Material Adverse Effect.
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 [*****]
 
(b)
Financial Strength Ratings
. The Account Party shall at all times maintain a financial strength
rating by A.M. Best Company and
 
shall not permit such rating to be lower than
 
[*****]
 
9.
NEGATIVE
 
COVENANTS.
(a)
 
[Reserved].
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 or
 
any Letter
 
of
Credit within three (3) Business Days
 
after the same shall become due and
 
payable.
 
28
Confidential
(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)
 
[
Reserved.
]
(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
,
or
 
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
), 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 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.
 
 
29
Confidential
(i)
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)).
 
(j)
Judgment
.
 
One or more judgments, orders or decrees (excluding
 
those 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) shall be entered or filed against the Account
 
Party by
any
 
court
 
and
 
continues
 
without
 
having
 
been
 
dismissed,
 
discharged,
 
vacated
 
or
 
stayed
within sixty (60) 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.
(k)
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.
(l)
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
,
 
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.
 
 
 
 
 
30
Confidential
(b)
 
Solely with respect
 
to the occurrence of
 
an Event
 
of Default under
Sections
or
Bank
 
may
 
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.
 
(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
.
 
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
 
affect 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.
14.
 
USA
 
PATRIOT
 
ACT;
 
ANTI-MONEY
 
LAUNDERING
 
LAWS
.
 
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
 
and other
 
information that
 
will allow
 
Bank
 
to identify
 
the Account
 
Party
 
in
accordance with the PATRIOT Act or such Anti-Money Laundering Laws.
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, which
 
governing law
 
may be
 
specified by Bank
 
at the Account
 
Party’s
 
request or
 
with
its
 
approval
 
(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.
 
 
 
 
 
31
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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.
 
THE
 
BANK
 
AND
 
THE
 
ACCOUNT
 
PARTY
 
IRREVOCABLY
 
AGREE
 
TO
 
BE
 
BOUND
(SUBJECT TO ANY AVAILABLE
 
RIGHT OF APPEAL) BY ANY JUDGMENT RENDERED
 
OR RELIEF 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.
 
THE
 
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
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
 
other 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.
 
 
 
 
 
 
 
32
Confidential
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
 
Bayerische
 
Landesbank,
 
New
 
York
 
Branch,
 
560
 
Lexington
Avenue, 22
nd
 
Floor, New York,
 
New York 10022, Attention: Maddalena Scenna & Chris Catucci, email addresses:
MScenna@bayernlbny.com
 
and
Chris.Catucci@bayernlbny.com
 
with
 
a
 
copy
 
to
 
Bayerische
 
Landesbank,
 
New
York
 
Branch, 560
 
Lexington
 
Avenue,
 
22
nd
 
Floor,
 
New York,
 
New York
 
10022, Attention:
 
Credit Services,
 
email
address:
creditcompliance@bayernlbny.com
.
 
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.
 
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, Conyers Corporate
 
Services (Bermuda) Ltd.,
Clarendon House, 2 Church Street, Hamilton,
 
HM 11 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
 
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
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.
 
 
 
 
 
 
 
33
Confidential
20.
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 provision
 
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.
21.
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.
22.
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(b)(v), 2(b)(vi), 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.
23.
INTERPRETATION;
 
COUNTERPARTS;
 
ELECTRONIC
 
EXECUTION
.
 
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;
 
(d)
 
references
 
to
 
any
 
laws,
 
rules,
 
or
 
regulations
 
include
 
any
 
amendments
 
thereto
 
or
successor or replacement
 
laws, rules, or
 
regulations; and (e)
 
references to
 
actions Bank “may” take
 
or omit to
take mean “may in its sole discretion”.
 
24.
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.
25.
NO FIDUCIARY DUTY,
 
ETC.
 
 
 
 
34
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.
26.
JUDGMENT
 
CURRENCY
.
 
The
 
Account
 
Party’s
 
obligation
 
to
 
make
 
payments
 
in
 
any
 
currency
 
(the
“
Specified
 
Currency
”)
 
shall
 
not
 
be
 
discharged
 
or
 
satisfied
 
by
 
any
 
tender,
 
or
 
any
 
recovery
 
pursuant
 
to
 
any
judgment or otherwise, which is expressed in or converted into any currency other than the
 
Specified Currency,
except to the extent that
 
such tender or recovery results in the actual receipt by Bank of the full amount of the
Specified Currency payable under this Agreement. The Account Party shall indemnify Bank for any shortfall
 
and
the
 
Account
 
Party’s
 
obligation
 
to
 
indemnify
 
Bank
 
and
 
make
 
payments
 
in
 
the
 
Specified
 
Currency
 
shall
 
be
enforceable as an alternative or additional cause of action to the extent that such actual receipt is less than the
full amount of
 
the Specified Currency expressed to
 
be payable hereunder, and shall not be
 
affected by judgment
being obtained for other sums due hereunder.
27.
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:
(a)
 
the
 
application
 
of
 
any
 
Write-Down
 
and
 
Conversion
 
Powers
 
by
 
an
 
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
 
35
Confidential
(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]
 
36
Confidential
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
:
BAYERISCHE LANDESBANK,
 
NEW YORK BRANCH
By: _________________________________
Name:
 
Christopher Catucci
Title:
 
Senior
 
Director,
 
Head
 
of
 
Financial
 
Institutions,
 
North
America
By: _________________________________
Name:
 
Sylvia Szawrycka
Title:
 
Vice President
 
37
Confidential
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