EXECUTION VERSION


Standby
Letter of Credit Agreement 


(Committed/Secured)


 


STANDBY LETTER 
OF  CREDIT  AGREEMENT 
(the  “Agreement”),  dated  as  of  August
27, 2021, by  and  among  EVEREST  REINSURANCE  (BERMUDA),  LTD.,  a  company 
incorporated and existing under the laws of Bermuda (the  “Account  Party”),
and BAYERISCHE LANDESBANK, 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  2(a). 


 


“Annual Statement”
means, with respect to the Account Party for any fiscal year, the annual
financial statements of the Account Party as required to be filed with the Insurance Regulatory Authority 
of  its  jurisdiction  of  domicile 
and  in  accordance  with  the  laws  of  such
jurisdiction, together with all exhibits, schedules, certificates and actuarial
opinions required to be filed or delivered therewith. 


“Bail-In Action”
means the exercise of any Write-Down and Conversion Powers by the applicable
Resolution Authority in respect of any liability of an Affected Financial
Institution.


“Bail-In Legislation”
means (a) with
respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European
Parliament and of the Council of the European Union, the implementing law,
regulation rule or requirement for such EEA 



Member
Country from time to time which is described in the EU Bail-In Legislation
Schedule and (b)
with respect to the United Kingdom,  Part I of the United Kingdom Banking Act 2009 (as
amended from time to time) and any other law, regulation or rule applicable in
the United Kingdom relating to the resolution of unsound or failing banks,
investment firms or other financial institutions or their affiliates (other
than through liquidation, administration or other insolvency proceedings).


“Bankruptcy Law”
means the United States Bankruptcy Code (11 U.S.C. § 101 et seq.), as
amended, modified, succeeded or replaced from time to time, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership,  insolvency,  reorganization  or  similar 
debtor  relief  laws  of  the United States or any state thereof,
Bermuda or any other foreign or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally. 


“Base Rate”
means, at any time, 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. 





“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 August 27, 2021. 


 


“Code” means the
Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder. 


“Collateral”  means  all  the  assets,  property 
and  interests  in  property  that  shall  from  time  to time be pledged or be purported to be
pledged as direct or indirect security for the Obligations pursuant to any one
or more of the Security Documents. 


“Collateral  Value”  for  any  Business 
Day  shall  be  calculated  as  set  forth  on  Attachment  A to Exhibit  B. 


 


“Collateral Value
Certificate” means a certificate substantially in the form attached as Exhibit
B. 


 


“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 $200,000,000, as such amount may be reduced from time
to time pursuant to the terms hereof. 


 


“Commitment Fee”
has the meaning specified in Section 2(i)  hereto. 


 


“Commitment
Termination Date” means the earliest to occur of (a) August 27, 2024, (b)
the date of termination of the entire Commitment by the Account Party pursuant to  Section 2(h), and (c) the date
of termination of the Commitment pursuant  to Section  11(a). 


 


“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.


 


“Control Agreement”
means the control agreement among Custodian, Bank and the Account Party, as
amended, supplemented or restated from time to time, pursuant to which a Lien
on one or more Custodial Accounts and the contents thereof and all security
entitlements related thereto securing the Obligations is perfected in favor of Bank. 


 


“Covenant Compliance
Worksheet” means a fully completed worksheet in the form of Annex A to
Exhibit  A. 


 


“Credit  Documents”  means,  collectively,  this  Agreement,  the  Letter  of  Credit  Documents, each Security Document, 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.


 


“Custodial Account”
means each custodial, brokerage or similar account of the Account Party
maintained by the Custodian as a “securities account” within the meaning of
Section 8-501(a) of the UCC for the Account Party as the “entitlement holder”
within the meaning of Section 8-102(7) of the UCC pursuant to a custodial agreement,
on which (and on the contents of which) a Lien has been granted as security for
the Obligations. 


 


“Custodian”
means The Bank of New York Mellon (in its capacity as custodian of the
Custodial Accounts). 


 


“Default” means
any of the events specified in Section 10  which with the passage of time, the giving of notice or
any other condition, would constitute an Event of Default. 


 


“Disqualified Capital
Stock” means, with respect to any Person, any Capital Stock of such Person
that, by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening of any
event or otherwise, (i) matures or is mandatorily redeemable or subject to any
mandatory repurchase  requirement, pursuant to a sinking fund obligation or
otherwise, (ii) is redeemable or subject to any mandatory repurchase
requirement at the sole  option  of  the  holder  thereof, or (iii) is
convertible into or exchangeable for (whether at  the  option  of  the issuer
or the holder thereof) (A) debt securities or (B) any Capital Stock referred to
in clause (i) or (ii) above, in each case under clause (i), (ii) or (iii) above
at any time on or prior to the 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 2(b)(i).  


“Due Date” has
the meaning specified in Section  2(b)(i). 


“EEA
Financial Institution” means (a) any credit institution or investment firm
established in any EEA Member Country which is subject to the supervision of an
EEA Resolution Authority, (b) any entity established in an EEA Member
Country which is a parent of an institution described in clause (a) of this
definition, or (c)
any financial institution established in an EEA Member Country which is a
subsidiary of an institution described in clauses (a) or (b) of this
definition and is subject to consolidated supervision with its parent.


 


“EEA
Member Country” means any of the member states of the European Union,
Iceland, Liechtenstein, and Norway.


 


“EEA
Resolution Authority” means any public administrative authority or any
Person entrusted with public administrative authority of any EEA Member Country
(including any delegee) having responsibility for the resolution of any EEA
Financial Institution.


 


“ERISA”  means 
the  Employee  Retirement  Income  Security  Act  of  1974, as amended.


 


“ERISA Affiliate” means any
trade or business (whether or not incorporated) that, together with the Account
Party, is treated as a single employer under Section 414(b) or (c) of the Code or Section 4001(14) of ERISA or, solely for purposes of Section 302 of
ERISA and Section 412 of the Code, is treated as a single employer
under Section 414(m)
or (o) of the Code.


 


“ERISA Event” means (a) any
“reportable event”, as defined in Section 4043 of ERISA or the regulations issued
thereunder with respect to a Plan (other than an event for which the 30 day
notice period is waived); (b) the failure to satisfy the “minimum
funding standard” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived with respect
to any Plan; (c) the
filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of
the minimum funding standard with respect to any Plan; (d) the incurrence by the Account Party or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Account Party or any
of its ERISA Affiliates from the PBGC or a plan administrator of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Account Party or
any of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal of the Account Party or any of its ERISA Affiliates from any
Plan or Multiemployer Plan; or (g) the receipt by the Account Party or any
of its ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan
from, the Account Party, or any of its ERISA Affiliates of any notice,
concerning the imposition upon the Account Party, or any of its ERISA
Affiliates of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent within the meaning of Title IV of
ERISA.   


 


“EU Blocking Regulation” means,
collectively, the Council Regulation (EC) No. 2271/96 of November 22, 1996, as
amended by Commission Delegated Regulation (EU) 2018/1100 of 



June
6, 2018, Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung
- AWV), and any other applicable anti-boycott or similar laws, each as in
effect from time to time.


 


“Event of Default” has the
meaning specified in Section 10.   


 


“Exchange Act” means the
Securities Exchange Act of 1934. 


 


“FATCA” means (a)
Sections 1471 through 1474 of the Code, as of the date of this Agreement (or  any  amended 
or  successor  version 
that  is  substantively  comparable  and  not
materially more onerous to comply with), any current or future regulations or
official interpretations thereof, and any agreements entered into pursuant to
Section 1471(b)(1) of the Code, (b) any treaty, law, regulation or other
official guidance enacted in any other jurisdiction, or relating to an
intergovernmental agreement between the United States and any other
jurisdiction with the purpose (in either case) of facilitating the
implementation of (a) above, or (c) any agreement pursuant to the implementation
of paragraphs (a) or (b) above with the IRS, the United States government or
any governmental or taxation authority in the United States. 


 


“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. 


 


“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). 


 


“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   



  

 1681v13 019861.0101 







terminated as  of  such  date,  (x)  all  contingent  obligations  of  such  Person
in respect of Indebtedness of other Persons and (xi) all indebtedness referred
to in clauses (i) through (x) above
secured by any Lien on any property or asset owned or held by such Person regardless  of  whether  the  indebtedness  secured 
thereby  shall  have  been  assumed 
by such Person or is nonrecourse to the credit of such Person. 


 


“Instructions”
has the meaning set forth in Section  2(a). 


 


“Insurance Regulatory
Authority” means, with respect to the Account Party, the insurance
department or similar Governmental Authority charged with regulating insurance
companies or insurance holding companies, in its jurisdiction of domicile and,
to the extent that it has regulatory authority over the Account Party, in each
other jurisdiction in which the Account Party conducts business or is licensed
to conduct business.


 


“Investment Company
Act” means the Investment Company Act of 1940 (15 U.S.C. § 80(a)(1), et  seq.). 


 


“IRS” means the
United States Internal Revenue Service. 


 


“issue” means,
with respect to any Letter of Credit, to issue, to amend or to extend the
expiry of, or to renew or increase the stated amount of, such Letter of Credit.
The terms “issued”, “issuing” and “issuance” have
corresponding meanings. 


 


“Letters
of Credit” means the collective reference to standby letters of credit
issued pursuant to Section  2. 


 


“Letter of Credit
Documents” means, with respect to any Letter of Credit, collectively, any
Applications, agreements, instruments, guarantees or other documents (whether
general in application or applicable only to such Letter of Credit) governing
or providing for the  rights  and  obligations  of  the  parties 
concerned  or  at  risk  with  respect  to  such  Letter of
Credit. 


 


“Letter of Credit Fee”
has the meaning specified in Section 2(i)(iii)  hereto. 


 


“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.





  

 1681v13 019861.0101 







 


“Multiple Employer
Plan” means an employee pension benefit plan with respect to which the
Account Party or any of its ERISA Affiliates is a contributing sponsor, and
that has two (2) or more contributing sponsors at least two (2) of whom are not
under common control, as such a plan is described in Section 4064 of ERISA.


 


“Non-Extension Notice
Date” has the meaning given to such term in Section 2(g). 


 


“Notice of
Non-Extension” has the meaning given to such term in Section  2(g). 


 


“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 5  below) any Application or any Letter of Credit, in each
case whether matured or unmatured, absolute or contingent, now existing or
hereafter incurred. 


 


“OFAC” means the
U.S. Department of the Treasury’s Office of Foreign Assets Control. 


 


“Officer’s  Compliance  Certificate”  means  a  certificate  of  the  chief  executive  officer, 
the chief financial officer, vice president—finance, principal
accounting officer, treasurer or assistant treasurer of the Account Party
substantially in the form attached as Exhibit A, together with a
Covenant Compliance Worksheet. 


 


“Other Taxes” has
the meaning specified in Section  2(c). 


 


“Outstanding  Letters 
of  Credit”  means,  as  of  any  date,  the  sum  of  (a)  the  Stated  Amount
of all outstanding Letters of Credit at such time and, without duplication, (b)
all reimbursement obligations in respect of Letters of Credit at such time. 


 


“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 



  

 1681v13 019861.0101 







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  2(b)(i). 


 


“PBGC”
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.


 


“Person” means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, governmental authority or other entity. 


 


“Plan” means any employee
pension benefit plan (including a Multiple Employer Plan, but other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or 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.


 


“Pledge Agreement”
means the Pledge and Security Agreement, dated as of the date hereof, made  by  the  Account  Party 
in  favor  of  Bank,  as  amended,  supplemented  or  restated from
time to time. 


 


“Quarterly Statement”
means, with respect to the Account Party for any fiscal quarter, the quarterly 
financial  statements  of  the  Account 
Party  as  required 
to  be  filed  with  the Insurance Regulatory Authority of its
jurisdiction of domicile, together with all exhibits, schedules, certificates
and actuarial opinions required to be filed or delivered therewith. 


“Requirement of Law”
means, with respect to any Person, the charter, articles, constitution or
certificate of organization or incorporation and by-laws or other
organizational or governing documents of such Person, and any statute, law,
treaty, rule, regulation, order, decree, writ, injunction or determination of
any arbitrator or court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject or otherwise pertaining to any or
all of the transactions contemplated by this Agreement and the other Credit Documents. 


“Resolution Authority”
means an EEA Resolution Authority or, with respect to any UK Financial
Institution, a UK Resolution Authority.


“Responsible Officer”
means, as to any Person, the chief executive officer, president, chief financial 
officer,  controller,  treasurer  or  assistant  treasurer  of  such  Person  or  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, Her Majesty’s
Treasury, or other relevant sanctions authority. 


 


“Sanctioned  Country”  means  at  any  time,  a  country,  territory  or  region  which  is  itself 
the subject or target of any Sanctions. 


 


“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, Her Majesty’s Treasury, or other relevant
sanctions authority, (b) any Person located,  operating,  organized  or  resident 
in  a  Sanctioned  Country  or  (c)  any  Person
owned or controlled by any such Person or Persons described in clauses (a) and
(b), including a  Person 
that  is  deemed  by  OFAC  to  be  a  Sanctions  target  based  on  the  ownership of such legal entity by
Sanctioned Peron(s). 


 


“Security  Documents”  means,  collectively,  (a)  the  Pledge 
Agreement  and  (b)  the  Control Agreement, and  (c)  each  other  document, 
agreement,  certificate  and/or 
financing  statement,
executed, delivered, made or filed pursuant to the terms of the documents
specified in foregoing clauses (a) and (b). 


 


“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.


 


“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  



  

 1681v13 019861.0101 







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 2(c).  


“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.


 





“Upfront
Fee” has the meaning specified in Section 2(i)  hereto. “U.S.” means United States of America. 


“Withdrawal Liability” means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle
E of Title IV of ERISA.


 


“Write-Down and Conversion Powers”
means, (a) with
respect to any EEA Resolution Authority, the write-down and conversion powers
of such EEA Resolution Authority from time to time under the Bail-In
Legislation for the applicable EEA Member Country, which write-down and
conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to
the United Kingdom,  any powers of the applicable Resolution 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. 


 


(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 4, promptly issue the Letter of Credit
requested thereby (but in no event shall Bank be required to issue any Letter of  Credit  earlier 
than  three  Business 
Days  after  its  receipt  of  the  Application  therefor) by issuing the original of such Letter of Credit to
the beneficiary thereof or as otherwise may
be  agreed  by  Bank  and  the  Account 
Party.  Inquiries,  communications  and  instructions
(whether written, facsimile or in other electronic form approved by Bank)
regarding a Letter of Credit, an Application and this Agreement are each
referred to herein as “Instructions”. 
Bank’s  records  of  the  content 
of  any  Instruction  will  be  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  2(i). 


 


(iii)           
except as otherwise
provided in clause (i) above and clause (iv) below, interest on each
amount  payable  by  the  Account 
Party  under  the  applicable  Credit 
Documents for each  day  from  and  including  the  date  such  payment  is  due
to and  not  including the
date of payment, on demand, at a rate per annum equal to the Base Rate as in
effect from time to time plus 2%; 


 


(iv)            
within ten (10) days of
demand, Bank’s 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  2(c)  shall  govern) 
and  (B)  changes 
in  the  basis  of  taxation of overall net income or overall
gross income by the U.S. or by the foreign jurisdiction or state under the laws
of which Bank is organized or has its lending office or any political
subdivision thereof), then the Account Party will pay to Bank, from time to
time, within ten (10) days after demand by Bank, which demand shall  include  a  statement  of  the  basis  for  such  demand  and  a  calculation  in reasonable detail of the amount demanded, additional amounts
sufficient to compensate Bank for such increased cost. A certificate as to the
amount of such increased cost, submitted to the Account Party by Bank, shall be
conclusive and binding for all purposes, absent manifest error; and 


 


(vi)            
if Bank determines that
any Change in Law affecting Bank or any lending office of Bank or Bank’s
holding company regarding capital or liquidity requirements has or would have
the effect of reducing the rate of return on Bank’s capital or on the capital
of Bank’s holding company as a consequence of this Agreement or the Letters of
Credit issued by Bank to a level below that which Bank or Bank’s holding company
could have achieved but for such Change in Law (taking into consideration
Bank’s or its holding company’s policies with respect to capital adequacy),
then from time to time the Account Party will pay to Bank within  ten (10) days after demand by Bank, which
demand shall include a statement of the basis for such demand and a calculation
in reasonable detail of the amount demanded,
such  additional  amount 
or  amounts  as  will  compensate  Bank  or  Bank’s holding company  for  any  such  reduction 
suffered.  A  certificate  as  to  such  amounts
submitted to the Account Party by Bank shall be conclusive and binding for all
purposes, absent manifest error. 


Bank shall use
reasonable efforts to designate a different lending office if such designation
will avoid (or reduce the cost to the Account Party of) any event described in
the preceding sentence and such designation will not, in Bank’s good faith judgment, subject Bank to any
unreimbursed cost or expense and would not otherwise be disadvantageous to Bank. 


Notwithstanding the
provisions of clause (v) or (vi) above or Section 2(c)  below (and without limiting the immediately preceding
paragraph), Bank shall not be entitled to compensation from the Account Party
for any amount arising prior to the date which is 180 days before the date on
which Bank notifies the Account Party of such event or circumstance (except
that if such event or circumstance is retroactive, then such 180-day period
shall be extended to include the period of retroactive effect thereof). 





Any payments 
received  by  Bank  pursuant  to  the  Credit 
Documents  after  1:00  p.m.
Eastern shall be deemed to have been made on the next succeeding Business Day
for all purposes under the Credit Documents. 


(c)              
Immediately Available
Funds; No Withholding. All
reimbursements and payments by or on behalf of the Account Party shall be made
in immediately available funds, free and clear of and without deduction for any
present or future Taxes, set-off or other liabilities, to such location as Bank
may reasonably designate from time to time. The Account Party shall pay all
withholding taxes and Other Taxes imposed by any taxing authority on
reimbursement or  payment 
under  any  Letter 
of  Credit  and  any  Credit  Document,  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 2  are absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under any and
all circumstances whatsoever, including:


 


(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  



  

 1681v13 019861.0101 







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; 


 


(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(e),  constitute  a  legal  or  equitable
defense to or discharge of, or provide a right of set-off against, the
Obligations, whether against Bank, the beneficiary or any other Person; 


 


provided,  however,  that  subject  to  Section  5(b)  below,  the  foregoing  shall  not  release 
Bank from such liability to the Account Party as may be determined by a
court of competent jurisdiction by  a  final  and  nonappealable  judgment 
against  Bank  following 
reimbursement and/or payment of the Obligations. 


 


(f)               
Computation of
Interest and Fees; Maximum Rate. All
computations of interest and fees to  be  made  hereunder  and  under  any  other  Credit 
Document  shall  be  made  on  the  basis of a year consisting of (i) in the
case of interest determined with reference to the Base Rate, 365/366 
days,  as  the  case  may  be,  or  (ii)  in  all  other 
instances,  360  days;  and  in  each
case under (i) and (ii), for the actual number of days elapsed (including the
first day but excluding the last day) occurring in the period for which such
interest or fee is payable. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest under
this  Agreement  charged 
or  collected  pursuant 
to  the  terms  of  this  Agreement  exceed the highest rate permissible under
any applicable law 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 



  

 1681v13 019861.0101 










  
   




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. 


 


(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. 


 


(i)               
Fees. The Account Party agrees to pay the
following amounts: 


 


(i)               
a non-refundable upfront
fee (the “Upfront Fee”), in an aggregate amount equal to 0.04% (four
basis points) of the Commitment as in effect on the Closing Date. The entire
amount of the Upfront Fee will be fully earned on the Closing Date and payable
in full in cash within 15 Business Days after the Closing Date; 


 


(ii)             
a non-refundable
commitment fee (a “Commitment Fee”), for each calendar quarter (or  portion  thereof) 
at  a  per  annum  rate  equal  to  0.10%  (ten basis points) of  the  actual  daily  aggregate
unused portion  of  the  Commitment,  payable  in  arrears 
(A)  on  the  last  Business 
Day  of  each calendar quarter, beginning with the first such day to
occur after the Closing Date through the Commitment Termination Date and (B) on
the Commitment Termination Date; and 


 


(iii)           
a  non-refundable  letter  of  credit  fee  (the  “Letter  of  Credit  Fee”)  for  each  calendar quarter (or portion thereof) in
respect of all Letters of Credit issued for the account of the Account Party  and  outstanding  during  such  quarter, 
at  a  per  annum  rate  equal  to  0.39%
(thirty-nine basis points) of the
actual daily aggregate Stated Amount of such Letters of Credit. The Letter of
Credit Fee shall be due and payable quarterly in arrears (A) on the last
Business Day of each calendar quarter, commencing with the first such date to
occur after the Closing Date through the  Final  Maturity  Date, 
(B)  on  the  Final  Maturity 
Date  and  (C)  on  the  Final  Expiry Date.


 


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. 


 


(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). 





  

 1681v13 019861.0101 







 


(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)           
Lien Search. Bank shall have received the results
of a Lien search, in form and substance reasonably satisfactory to Bank,
indicating among other things that the Collateral is free and clear of any Lien. 


 


(iv)            
Consents;  Defaults. 


 


(A)            
Governmental
and Third Party Approvals.
The Account Party shall have received all material governmental, shareholder
and third party consents and approvals necessary (or any other material
consents as determined in the reasonable discretion of Bank) in connection with
the transactions contemplated by this Agreement and the other Credit Documents
and all applicable waiting periods shall have expired without any  action  being  taken  by  any  Person 
that  would  reasonably  be  expected  to  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. 


 


(v)           
[Reserved] 


 


(vi)            
Miscellaneous. 


 


(A)            
PATRIOT Act,
etc. The Account
Party shall have provided to Bank the documentation and other information
requested by Bank in order to comply with requirements of any Anti-Money
Laundering Laws, including the PATRIOT Act and any applicable “know your
customer” rules and regulations. 


 


(B)             
Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions
contemplated by this Agreement shall be  



  

 1681v13 019861.0101 







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)           
Notice and Collateral
Value Certificate.
Bank shall have received an Application from  the  Account  Party  and  a  Collateral  Value  Certificate  pursuant 
to Section  7(d)(iii). 


 


(iv)            
Miscellaneous. In addition to the foregoing, Bank
shall be under no obligation to issue any Letter of Credit if: 


 


(A)            
any  order,  judgment  or  decree  of  any  Governmental  Authority  or  arbitrator having jurisdiction over Bank
shall by its terms enjoin or restrain the issuance of such Letter of Credit or
any law applicable to Bank, or any request or directive (whether or not having
the force of law) from any Governmental Authority with jurisdiction over it
shall prohibit, or request that it refrain from, the issuance of letters of
credit generally or such Letter of Credit in particular or shall impose upon it
with respect to such Letter of Credit any restriction or reserve or capital or
liquidity requirement (for which Bank is not otherwise compensated) not  in  effect 
on  the  Closing  Date,  or  any  unreimbursed  loss,  cost  or  expense
which was not applicable or in effect as of the Closing Date and which Bank in
good faith deems material to it; 


 


(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; 





  

 1681v13 019861.0101 







 


(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


(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; 


 





  

 1681v13 019861.0101 







(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


(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 5(a)  to the extent that such Costs (A) are determined by a
court of competent jurisdiction by a final and nonappealable judgment to have resulted
from the 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(a). This indemnity provision shall
survive termination of this Agreement and all Letters of Credit. 


 


(b)              
Direct Damages; No
Punitive Damages. The
liability of Bank (or any other Indemnified Person) under,  in  connection  with  and/or  arising 
out  of  any  Credit  Document 
or  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; 


 


(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: 


 


(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. 


 


(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  7(h). 


 


(v)  
The preceding provisions
of this Section 6(i) and the provisions of Section 7(h)(ii) and Section
7(j) will not apply to any party hereto to which the EU Blocking Regulation
applies, if and to the extent that such provisions are or would be
unenforceable pursuant to, or would otherwise result in a breach or violation
of, (i) any provision of the EU Blocking Regulation (or any law or regulation
implementing the EU Blocking Regulation in any member state of the European
Union) or (ii) any similar blocking or anti-boycott law in effect in the United
Kingdom.


 


(j)               
Filed All Tax Returns
and Paid All Taxes. It
has filed all required tax returns, and all Taxes, assessments and other
governmental charges due from it have been fully paid, except for Taxes which
are being contested in good faith or those which the failure to file or pay
would not have a Material Adverse Effect. It has established on its books
reserves adequate for the payment of all federal, state and other income tax
liabilities, including those being contested in good faith. 


 


(k)             
Financial Statements. The financial statements most recently
furnished to Bank by the Account Party fairly present in all material respects
the financial condition of the Account Party as at the date of such financial
statements and for the periods then ended in accordance with GAAP (except as
disclosed therein and, in the case of interim financial statements for any
fiscal quarter, subject to normal year-end adjustments and except that footnote
and schedule disclosure may be abbreviated), and there has been no material
adverse change in the Account Party’s business or financial condition or
results of operations since the date
of the Account Party’s most recent annual financial statements. 


 


(l)               
Collateral. On the date of issuance of any Letter
of Credit for the account of the Account 



Party, both
immediately before and after giving effect to such issuance, the amount of
Outstanding Letters of Credit does not exceed the Collateral Value of the Collateral. 


 


(m)            
Margin Stock. It is not engaged principally or as
one of its activities in the business of extending credit for the purpose of
“purchasing” or “carrying” any “margin stock” (as each such term is defined or
used, directly or indirectly, in Regulation U of the Board of Governors of the
Federal Reserve System). No part of the proceeds of any Letters of Credit will
be used for purchasing or carrying margin stock or for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation T,
U or X of such Board of Governors. 


 


(n)              
No  Material 
Adverse  Effect.  There  has  been  no  Material  Adverse 
Effect  since  December 31, 2020, and there exists no
event, condition or state of facts that could reasonably be expected to result
in a Material Adverse Effect. 


 


(o)              
Investment Company. It is not an “investment company” or
a company “controlled” by an
“investment company” (as each such term is defined or used in the Investment
Company Act). 


(p)              
Solvency.  It is Solvent.


(q)              
ERISA.  It does not have any direct
obligation or direct liability in respect of any Plan or Multiemployer Plan,
and except as would not reasonably be expected to have a Material Adverse
Effect, no ERISA Affiliate thereof has any obligation or liability in respect
of any Plan or Multiemployer Plan. With respect to its obligations to each
Plan, it is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder and other federal or state laws.  No ERISA Event has
occurred or is reasonably expected to occur that, when taken together with all
other such ERISA Events for which liability is reasonably expected to occur,
has had or could reasonably be expected to result in a Material Adverse
Effect.  


 


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)              
GAAP Financial
Statements. It shall
deliver to Bank, in form and detail satisfactory to Bank:


 


(i)   
As soon as available and
in any event within 55 days after the end of each of the first three fiscal
quarters of each fiscal year, beginning with the fiscal quarter ending 
March  31,  2021,  the  Quarterly  Statement  prepared  for  its  board of directors in accordance with
GAAP, in each case applied on a basis consistent with that of the preceding
quarter or containing disclosure of the effect on the financial condition or
results of operations of any change in the application of accounting principles
and practices during such quarter; and 


 


(ii) 
As soon as available and
in any event within 90 days after the end of each fiscal 



year,
beginning with the fiscal year ending December 31, 2020, the Annual Statement
prepared for its board of directors in accordance with GAAP, in each case
applied on a basis consistent with that of the preceding year or containing
disclosure of the effect on the financial condition or results of operations of
any change in the application of accounting principles and practices during
such year. 


(b)          
Certificates;
Other Reports.  It
shall deliver to Bank: 


 


(i)   
at  each  time  financial  statements  are  delivered  pursuant  to  Section  7(a),  a  duly completed Officer’s Compliance
Certificate signed by the chief executive officer, chief financial officer,
vice president—finance, principal accounting officer, treasurer or assistant
treasurer of the Account Party, together with a Covenant Compliance  Worksheet  reflecting  the  computation  of  the  respective financial covenants set forth
in such Covenant Compliance Worksheet; 


 


(ii) 
promptly upon receipt
thereof, copies of all reports, if any, submitted to the Account Party, or any
of its respective boards of directors by its respective independent public
accountants in connection with their auditing function, including any
management report and any management responses
thereto; 


 


(iii) promptly
upon the request thereof, such other information and documentation required by
bank regulatory authorities under applicable Anti-Money Laundering Laws
(including any applicable “know your customer” rules and regulations and the
PATRIOT Act), as from time to time reasonably requested by Bank; and 


 


(iv) 
such  other  information  regarding  the  operations,  business 
affairs  and  financial condition of the Account Party
thereof as Bank may reasonably request. 


 


(c)          
Notice  of  Litigation  and  Other  Matters.  Promptly  (but  in  no  event  later  than  ten  (10)
days after any Responsible Officer of the Account Party becoming aware
thereof), it shall notify Bank in writing of: 


 


(i)    the occurrence of any Default or Event
of Default; 


 


(ii) 
the commencement of all
proceedings and investigations by or before any Governmental Authority  and  all  actions 
and  proceedings  in  any  court  or  before any arbitrator against or involving
the Account Party or any of its respective properties, assets  or  businesses  in  each  case  that  if  adversely  determined  would reasonably be expected to result in a Material Adverse Effect; 


 


(iii)
any  attachment,  judgment,  Lien,  levy  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(c)  shall be accompanied by a statement of a Responsible
Officer of the Account Party, setting forth details of the occurrence 



referred to  therein 
and  stating  what  action  the  Account  Party has
taken  and  proposes 
to take with  respect 
thereto  and  shall  describe  with  particularity  any  and  all  provisions  of this Agreement and any other Credit
Document that have been breached. 


 


(d)          
Collateral.  It shall comply with the following: 


(i)   
Pursuant to the Security
Documents and as collateral security for the
payment and performance of its Obligations, the Account Party shall
grant and convey to Bank a security interest in the Collateral charged and
pledged by it, prior and superior to all other Liens, except for Liens in favor
of the Custodian securing payment  of  amounts  advanced 
to  settle  authorized  transactions  or  pay income or  distributions  in  respect  of  Collateral.  The  Account  Party 
shall  cause the Collateral
charged and pledged by it to be made subject to the Security Documents (in form
and substance reasonably acceptable to Bank) necessary for the perfection of
the security interest in the Collateral and for the exercise by Bank of its
rights and remedies with respect thereto. The Account Party shall promptly 
after  the  date  hereof  file  a  charge 
against  the  Collateral  with  the Bermuda
Registrar of Companies and deliver evidence of such filing to Bank no later
than thirty (30) days after the date hereof. 


 


(ii) 
The  Account 
Party  shall  at  all  times  cause  the  Collateral  Value  of  the  Collateral
pledged by the Account Party to equal or exceed the amount of Outstanding
Letters of  Credit  at  such  time.  If  on  any  date  the  Outstanding  Letters 
of  Credit shall exceed the
Collateral Value of the Collateral pledged by the Account Party, the Account
Party agrees to pay or deliver within three (3) Business Days to the Custodian
Collateral having an aggregate Collateral Value of not less than  the  amount 
of  such  excess, 
with  any  such  Collateral  to  be  held  in
the Account Party’s Custodial Account as security for all Obligations hereunder. 


 


(iii) The 
Account  Party  shall  deliver  to  Bank  a  Collateral  Value  Certificate,  setting forth the Outstanding Letters of
Credit, the fair market value of the Collateral by category and in the
aggregate, the calculation of each Collateral Value and such other information
as Bank may reasonably request (A) not later than 11:00 a.m. on the Business
Day immediately preceding the date on which
any Letter of  Credit  is  to  be  issued, 
(B)  within  ten  (10)  Business 
Days  after  the  end
of each calendar month, (C) at and as of such other times as Bank may
reasonably request and (D) at such other times as the Account Party may desire.


 


(iv) 
The Account Party shall
cause the Custodian to provide to Bank, in a manner and at times consistent
with the terms of the Control Agreement, information with respect to each of
its Custodial Accounts, in a format to be agreed by Bank (acting  reasonably),  which 
information  shall  provide, 
without  limitation, a detailed
list of the assets in each such Custodial Account (including the amount of cash
and a detailed description of the Collateral (including a breakdown listing the
name of each issuer, and the fair market value of the assets held  of  such  issuer)),  the  fair  market 
value  of  those 
assets  and  the  pricing
source of such valuation. 


 


(e)          
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 



  

 1681v13 019861.0101 







Material Adverse Effect or impact the Collateral, 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. 


(f)          
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.


 


(g)          
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. 


 


(h)          
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
and for general corporate purposes. 


 


(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.


 


(i)            
               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.


 


(j)          
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. 


 


(k)        
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 perfect and maintain the validity and priority of the
Liens granted pursuant to the Security Documents, 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.


 


(l)          
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.


 


(m)      
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.


 


(n)         
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 $1,905,373,600.00.


 


(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 “B++.”





  

 1681v13 019861.0101 







 


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. 


 


(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)                     
Failure to Maintain
Collateral Value. The
Account Party shall fail to maintain at any time Collateral in which Bank shall
have a perfected first priority security interest and having a  Collateral  Value  of  not  less  than  the  Outstanding  Letters  of  Credit 
and  such  failure shall continue or remain
unremedied for more than the three (3) Business Day period provided for in Section  7(d)(ii). 


 


(e)                      
Failure to Perform or
Observe Covenants. 


 


(i)                 
The  Account 
Party’s failure to  perform 
or  observe  any  term,  covenant 
or  agreement contained in Sections
7(c)(i), 7(h)  or 8;  or 


 


(ii)               
The  Account 
Party’s  failure  to  perform  or  observe  any  term,  covenant 
or  agreement contained in any
Credit Document (other than those referred to in subsections (a), (b), (c), (d) and (e)(i) of this Section 10), and with respect to any such
failure or breach that by its nature
can be cured, such failure or breach shall continue or remain unremedied for thirty (30) calendar days after the
earlier of (1) Bank’s delivery of written notice thereof to the Account Party,
and (2) the Account Party having actual knowledge that such failure or breach
has occurred.  


 


(f)                        
Insolvency
Proceedings, Etc. The
Account Party institutes or consents to the institution of any proceeding under
any Bankruptcy Law; or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for 



all or any material part of its property; or any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer is appointed without the application or consent of the Account Party,
and the appointment continues undischarged, undismissed or unstayed for sixty
(60) calendar days; or any proceeding under any Bankruptcy Law relating to the
Account Party  or  to  all  or  any  material  part  of  their respective property  is  instituted  without  the  consent of the Account Party, and
continues undischarged, undismissed or unstayed for sixty (60) calendar days;
or an order for relief is entered in any such proceeding; or the Account Party
becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due. 


 


(g)                       
Sale of Assets;
Merger; Dissolution.  There
shall occur in one or a series of transactions: 
(i) the sale, assignment or transfer of all or substantially all of the assets
of the Account Party); (ii) a merger, amalgamation
or consolidation of the Account Party without the prior written consent of
Bank, except that the Account Party may merge, amalgamate or consolidate with
any Person so long as the Account Party is the surviving entity  in  any  such  transaction;  or  (iii) the
dissolution of the Account Party. 


 


(h)                       
Credit Documents. Any provision of any Credit Document
to which the Account Party is a  party 
shall  for  any  reason  cease  to  be  valid  and  binding  or  enforceable;  or  the  Account Party shall deny or disaffirm in
writing the enforceability of any provision of any Credit Document to which it
is a party. 


 


(i)                        
Security Documents. Any Security Document to which the
Account Party is a party shall for
any reason (other than pursuant to the terms thereof) cease to create in favor
of Bank a valid and perfected first priority security interest in the
Collateral of the Account Party purported to  be  covered  thereby; 
or  Bank  shall  cease  for  any  reason 
to  hold  a  perfected  first priority security  interest  in  the  Collateral  of  the  Account 
Party;  or  the  Account  Party 
or  any Person acting on its
behalf shall deny or disaffirm in writing the enforceability of any Security Document. 


 


(j)                        
Indebtedness
Cross-Default. The
Account Party shall (i) default in the payment of any Indebtedness (other than
the Obligations and other than Indebtedness solely among or between the Account
Party and its affiliates) the aggregate principal amount (including undrawn
committed or available amounts), or with respect to any Hedge Agreement, the
Hedge Termination Value, of which is in excess of the Threshold Amount beyond
the period of grace if any, provided in the instrument or agreement under which
such Indebtedness was created, or (ii) default in the observance or performance
of any other agreement or condition relating to any Indebtedness (other than
the Obligations and other than in respect of Indebtedness solely among or
between the Account Party and its affiliates) the aggregate principal amount
(including undrawn committed or available amounts), or with respect to any
Hedge Agreement, the Hedge Termination Value, of which is in excess of the
Threshold Amount or contained in any instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist other than in respect of an instrument,
agreement, or condition solely among or between the Account Party and its
affiliates, the effect of which default or  other  event  or  condition  is  to  cause  with  the  giving  of  notice  and/or  lapse  of  time,
if required, any such Indebtedness 



to (A) become due,
or to be repurchased, prepaid, defeased or redeemed (automatically or
otherwise), or an offer to repurchase, prepay, defease or  redeem  such  Indebtedness  to  be  made,  prior  to  its  stated  maturity  (any  applicable
grace period  having  expired)  or  (B)  be  cash  collateralized  (it  being  understood  that  a  pledge of cash  collateral  by  the  Account 
Party to secure  a  Hedge  Agreement 
as  initial  or  variation
margin does not trigger a violation of this clause (B)).   


 


(k)                    
Judgment.  One  or  more  judgments,  orders  or  decrees 
shall  be  entered 
against  the  Account Party by any court and continues
without having been discharged, vacated or stayed for a period of  thirty  (30)  consecutive  days  after  the  entry  thereof 
and  such  judgments,  orders  or decrees
are either (i) for the payment of money, individually or in the aggregate (not
paid or fully covered by insurance as to which the relevant insurance company
has acknowledged coverage), equal to or in excess of the Threshold Amount or
(ii) for injunctive relief  and  could  reasonably  be  expected,  individually  or  in  the  aggregate,  to  have
a Material Adverse Effect. 


 


(l)                     
Employee  Benefit 
Matters.  Except as would not reasonably be
expected to result in a Material Adverse Effect, any Lien  shall  be  imposed  on  the  assets 
of  the  Account Party under ERISA with respect to any Plan or under any
foreign laws similar to ERISA governing foreign pension plans. 


 


(m)                  
Change in Control.  The occurrence of any Change in
Control. 


 


11.             
REMEDIES.  Upon the occurrence and during the
continuance of any Event of Default: 


 


(a)              
Bank may terminate the
Commitment and declare all amounts owed to Bank under this Agreement or  any  of  the  other  Credit  Documents 
and  all  other  Obligations,  to  be  forthwith due and payable, whereupon the
same shall promptly become due and payable without presentment, demand, 
protest  or  other 
notice  of  any  kind,  all  of  which  are  expressly 
waived by the Account Party, anything in this Agreement or the other
Credit Documents to the contrary notwithstanding; provided, that upon the
occurrence of an Event of Default specified in Section 10(f), the Commitment shall be
automatically terminated and all Obligations shall automatically become due and
payable without presentment, demand, protest
or  other  notice 
of  any  kind,  all  of  which  are  expressly  waived 
by  the  Account  Party,
anything in this Agreement or in any other Credit Document to the contrary
notwithstanding.


 


(b)              
Solely  with  respect  to  the  occurrence  of  an  Event  of  Default 
under  Sections  10(a),  (b),  (d), or (f),  Bank may (i) demand that the Account
Party deposit in the Custodial Account an amount of cash equal to 103% of the
aggregate Outstanding Letters of Credit to be held and applied to the
Obligations and/or (ii) terminate any or all of the Letters of Credit or give
Notices of Non-Extension in respect thereof, in each case if permitted in
accordance with their terms; provided that upon the occurrence of an
Event of Default specified in Section  10(f),  the  requirement  to  deliver  cash  collateralize  pursuant 
to  the  foregoing  clause (i)
in respect of all Outstanding Letters of Credit shall automatically become due
without demand or other notice of any kind, all of which are expressly waived
by the Account Party, anything in this Agreement or in any other Credit
Document to the contrary notwithstanding. Such cash collateral shall be applied
by Bank to the payment of drafts drawn, and
other demands for payments made, under 
such   



Letters of  Credit,  and  the  unused 
portion  thereof  after  all  such  Letters  of Credit shall have expired without any
pending drawing thereon, or been fully drawn upon, if any, shall be applied to
repay the other Obligations.  After all such Letters of Credit shall have
expired without any pending drawing thereon, or been fully drawn upon, and  all  Obligations  shall  have  been  paid  in  full,  the  balance,  if  any,  in  such  Custodial Account shall be returned to
the Account Party. 


 


(c)              
Bank may exercise from
time to time any of the rights, powers and remedies available to Bank under any
Credit Document to which the Account Party is a party, under any other
documents now  or  in  the  future  evidencing  or  securing  the  Obligations  or  under  applicable law, and all such remedies
shall be cumulative and not exclusive. 


 


12.             
SUBROGATION.  Without limiting any rights or
remedies of Bank under applicable law, if an Event of Default is continuing,
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 transaction or
obligation underlying any Letter of Credit, to the rights of any holder in due
course or Person with similar status against the Account Party, and to the
rights of any beneficiary or any successor or assignee of any beneficiary. 


 


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. 


 


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 19  BELOW. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS
AGREEMENT SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR THE RIGHT OF  BANK  TO  BRING 
ANY  ACTION  OR  PROCEEDING  AGAINST 
THE  ACCOUNT  PARTY OR ITS PROPERTIES IN THE COURTS OF
ANY OTHER JURISDICTION. 


 


17.  
WAIVER
OF JURY TRIAL. TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE ACCOUNT PARTY AND BANK KNOWINGLY
AND VOLUNTARILY WAIVE ALL RIGHTS TO TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION BASED ON, ARISING OUT OF, OR RELATING TO ANY CREDIT DOCUMENT OR
LETTER OF CREDIT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (ORAL
OR WRITTEN) OR ACTIONS OF THE ACCOUNT PARTY OR BANK WITH RESPECT THERETO. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO ISSUE LETTERS OF CREDIT. 


 


18.  
BANKRUPTCY
AND FORFEITURE REINSTATEMENT.
If any consideration transferred  to Bank in payment of, or as collateral for,
or in satisfaction of the Obligations, shall be voided in whole or in part as a result of (a) a
subsequent bankruptcy or insolvency proceeding; (b) any forfeiture or seizure
action or  remedy;  (c)  any  fraudulent  transfer 
or  preference  action 
or  remedy;  or  (d)  any  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.






19.  
NOTICES.           Unless 
otherwise  expressly  provided  herein,  all  notices, Instructions,  approvals,
requests, demands, consents and other communications provided for hereunder
(collectively, “notices”) shall be in writing (including by facsimile or
other electronic transmission approved by Bank). All notices shall be sent by
regular U.S. mail or registered or certified mail prepaid, by facsimile or
other electronic transmission approved by Bank, by hand delivery, by Federal
Express (or other comparable domestic or international delivery service) 
prepaid  to  the  applicable  address, 
facsimile  number  or  electronic  mail  address  set  forth  on the signature page hereof in the case
of the Account Party. All notices to Bank (including notices by email, if Bank
approves of receiving notices by email) shall be directed to Bank at Bayerishe
Landesbank, Brienner Strasse 18, 80333 Munich, Germany, Attention: Thorsten Klein and Vanessa
Niekrawietz,  email addresses: Thorsten.Klein@bayernlb.de  and Vanessa.Niekrawietz@bayernlb.de, with a copy to Bayerishe Landesbank,
560 Lexington Avenue, 21st 



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 21,  Bank may assign its rights and
obligations under each Credit Document, including its rights to reimbursement
regarding any Letter of Credit, in whole or in part, with the Account Party’s consent; 
provided  that  the  Account  Party 
shall  be  deemed 
to  have  consented  to  any  such  assignment unless it objects by written
notice to Bank within ten (10) Business Days after having received notice
thereof; and,  provided  further,  that  the  Account 
Party’s  consent  to  an  assignment  to  any  Person 
shall  not  be required if (i) the assignment is to an
affiliate of Bank or (ii) an Event of Default has occurred and is continuing.
Bank may sell to one or more Persons participations in or to all or a portion
of its rights and obligations under  the  Credit  Documents 
without  the  Account 
Party’s  consent.  Any  assignment  in  violation
of this Section 21  shall be void. The Account Party shall not assign or
transfer any of its interests, rights or remedies  related 
to  any  Credit  Document,  in  whole  or  in  part,  without  the  prior  written 
consent  of  Bank. Any Person to whom Bank delegates
its obligation to issue a Letter of Credit must be a bank, or a branch or
affiliate, that is on the List of Qualified U.S. Financial Institutions
maintained by the Securities Valuation Office of the National Association of
Insurance Commissioners. 


 


22.  
SEVERABILITY. Whenever possible, each provision of
each Credit Document shall be interpreted in  a  manner  as  to  be  effective  and  valid  under  applicable  law,  but  if  any  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. 


 


23.  
ENTIRE
AGREEMENT. This Agreement, together with the
other Credit Documents and any other agreement, document or instrument referred
to herein, constitute the final, exclusive and entire 



  

 1681v13 019861.0101 







agreement
and understanding of, and supersede all prior or contemporaneous, oral or
written, agreements, understandings, representations and negotiations between,
the parties relating to the subject matter of the Credit Documents, provided
that this Agreement shall not supersede any reimbursement agreement (however
titled) that has been entered into specifically with respect to any “direct
pay” standby letter of credit or  other  similar  standby 
letter  of  credit  where  the  terms  of  such  reimbursement  agreement  have  been drafted to specifically address the
particular attributes of, or the particular circumstances of the underlying
transaction supported by, such standby letter of credit.


24.  
SURVIVAL.  All covenants, agreements,
representations and warranties made by the Account Party herein and in the
other Credit Documents and in the certificates or other instruments  delivered
in connection with or pursuant to this Agreement or any other Credit Documents
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the issuance of
any Letters of Credit, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that Bank may have had notice or
knowledge of any Event of Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated.  The provisions of Sections 2(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.


 


25.  
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”. 


 


26.  
COUNTERPARTS;
ELECTRONIC EXECUTION. 
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts and all of such counterparts taken
together shall be deemed to constitute one and the same instrument.  Delivery
of an executed signature page of this Agreement by any electronic means that
reproduces an image of the actual executed signature page shall be effective as
delivery of a manually executed counterpart hereof.


 


27.  
NO
FIDUCIARY DUTY, ETC. 
 


 


(a)           The Account
Party acknowledges and agrees that Bank will not have any obligations except
those obligations expressly set forth herein and in the other Credit Documents
and Bank is acting solely in the capacity of an arm’s length contractual
counterparty to the Account Party with respect to the Credit Documents and the
transactions contemplated herein and therein and not as a financial advisor or
a fiduciary to, or an agent of, the Account Party or any other Person.  The
Account Party agrees that it will not assert any claim against Bank based on an
alleged breach of fiduciary duty by Bank in connection with this Agreement and
the transactions contemplated hereby.  Additionally, the Account Party
acknowledges and agrees that Bank is not advising the Account Party as to any
legal, tax, investment, accounting, regulatory or any other matters in any
jurisdiction.  The Account Party shall consult with its own advisors concerning
such matters and shall be responsible for making its own 



independent
investigation and appraisal of the transactions contemplated herein or in the
other Credit Documents, and Bank shall have no responsibility or liability to
the Account Party with respect thereto.


 


(b)          The Account
Party further acknowledges and agrees that Bank, together with its branches and
affiliates, is a full service securities or banking firm engaged in securities
trading and brokerage activities as well as providing investment banking and
other financial services.  In the ordinary course of business, Bank may provide
investment banking and other financial services to, and/or acquire, hold or
sell, for its own accounts and the accounts of customers, equity, debt and
other securities and financial instruments (including bank loans and other
obligations) of, the Account Party and other companies with which the Account
Party may have commercial or other relationships.  With respect to any
securities and/or financial instruments so held by Bank or any of its
customers, all rights in respect of such securities and financial instruments,
including any voting rights, will be exercised by the holder of the rights, in
its sole discretion.


 


(c)           In
addition, the Account Party acknowledges and agrees that Bank and its
affiliates may be providing debt financing, equity capital or other services
(including financial advisory services) to other companies in respect of which
the Account Party may have conflicting interests regarding the transactions
described herein and otherwise.  Bank will not use confidential information
obtained from the Account Party by virtue of the transactions contemplated by
the Credit Documents or its other relationships with the Account Party in
connection with the performance by Bank of services for other companies, and
Bank will not furnish any such information to other companies.  The Account
Party also acknowledges that Bank has no obligation to use in connection with
the transactions contemplated by the Credit Documents, or to furnish to the
Account Party, confidential information obtained from other companies.


 


28.  
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.


 


29.  
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


(b)  the effects of any
Bail-In Action on any such liability, including, if applicable:





  

 1681v13 019861.0101 







(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]














                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:  /S/
PETER BELL  


                   
Name: Peter Bell


           Title:   CEO


 


Address for Notices: 


 


Seon Place, 4th floor 141
Front Street 


Hamilton HM19 Bermuda 


 


 


 


 


BANK: 


 


BAYERISCHE LANDESBANK


 


By:  /S/ THOMAS LEHMPUHL


          Name:  Thomas Lehmpuhl


          Title:   Managing Director


 


 


By:  /S/ THORSTEN KLEIN


          Name:  Thorsten Klein


          Title:  Director


 


 


 


 












  

 1681v13 019861.0101 







EXHIBIT A 


 


FORM
OF


OFFICER’S
COMPLIANCE CERTIFICATE 


 


 


THIS
CERTIFICATE is given
pursuant to Section 7(c)(i) of the Standby Letter of Credit Agreement, dated as
of August 27, 2021 (as amended, restated, modified or supplemented from time to
time, the “Credit Agreement,” the terms defined therein being used
herein as therein defined), among Everest Reinsurance (Bermuda), Ltd., a
company incorporated and existing under the laws of Bermuda (the “Account
Party”), and Bayerische Landesbank (the “Bank”). 


 


The undersigned hereby certifies that: 


 


1.                 
He or she is the [Chief
Executive Officer] [Chief Financial Officer] [Vice President— Finance]
[Principal Accounting Officer] [Treasurer] [Assistant Treasurer] of the Account Party. 


 


2.                 
Enclosed with this
Certificate are copies of the financial statements of the Account Party  as  of 
  , and for the  [         -month  period]  [year]  then  ended,  required
to be delivered under Section 7(a) of the Credit Agreement. Such financial
statements have been prepared in accordance  with  GAAP  [(subject  to  the  absence 
of  notes  required 
by  GAAP  and  subject  to  normal  year-end adjustments)]1
and present fairly, in all material respects, the financial condition of the
Account Party on a consolidated basis as of the date indicated and the results
of operations of the Account Party on a consolidated basis for the period
covered thereby. 


 


3.                 
The  undersigned  has  reviewed  the  terms  of  the  Credit 
Agreement  and  has  made,  or  caused
to be made under the supervision of the undersigned, a review in reasonable
detail of the transactions and condition of  the  Account  Party  during  the  accounting  period  covered  by  such  financial statements.


 


4.                 
The  examination  described  in  paragraph  3  above  did  not  disclose, 
and  the  undersigned  has no knowledge of the existence of, any Default or Event of
Default during or at the end of the accounting period covered  by  such  financial  statements  or  as  of  the  date  of  this  Certificate  [, 
except  as  set  forth  below. 


 


Describe here or in a
separate attachment any exceptions to paragraph 4 above by listing, in
reasonable detail, the nature of the Default or Event of Default, the period
during which it existed and the action that Everest has taken or proposes to
take with respect thereto]. 


 


5.                 
Attached  to  this  Certificate  as  Annex  A  is  a  covenant  compliance  worksheet  reflecting  the computation of the financial
covenants set forth in Section 8  of the Credit Agreement as of the last day of the period
covered by the financial statements enclosed
herewith. 


 


 


 


 


 


 


 












IN
WITNESS WHEREOF, the
undersigned has executed and delivered this Certificate as of the 


                  day 
of                                  ,            . 


 


 


EVEREST REINSURANCE (BERMUDA), LTD. 


 


 


By:                                                                                                    


 


Name:                                                                                             


 


Title:                                                                                                












ANNEX A 


 


COVENANT COMPLIANCE WORKSHEET 


 


A.         
Minimum
Total Shareholder’s Equity (Section 8(a) of the Credit Agreement) 


 


 


	
  (1) 
  Total Shareholder’s Equity as of the date
  of 

  determination

  	
   

  
	
  a)   Required: 

  	
  $1,905,373,600.00

  
	
  b)   Actual: 

  	
  $                            

   

   

   

   

  






 


 


 


 


 


B.   Financial Strength Rating (Section
8(b) of the Credit Agreement) 


 


	
  (1) 
  Has the Account Party maintained a financial strength rating by 

  A.M.
  Best Company at all times from the date of the most recently delivered
  Officer’s Compliance Certificate to and including the date hereof? 

  	
   

  Yes

  	
   

            No 

  
	
  (2)
  Has the financial strength rating by A.M. Best Company for the Account Party
  been equal to or better than “B++” at all times during the period described
  in line (1) above? 

  	
   

            Yes 

  	
   

            No 

  
















  

 1681v13 019861.0101 







EXHIBIT B 


 


FORM OF COLLATERAL
VALUE CERTIFICATE 


 


                             ,  20 
      


 


 


THE BANK NAME ADDRESS


Ladies and Gentlemen: 


 


Reference
is made to the Standby Letter of Credit Agreement, dated as of August 27, 2021,
among Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing
under the laws of Bermuda (the “Account Party”), and Bayerische
Landesbank (the “Bank”) (as amended or otherwise modified from time to
time, the “Credit Agreement”). Terms defined in the Credit Agreement
are, unless otherwise defined herein or the context otherwise requires, used
herein as defined therein. 


 


This  Collateral
  Value   Certificate   is   delivered   pursuant   to   Section   7(e)(iii)
  of   the
  Credit 


Agreement.  The date of this
Collateral Value Certificate is                                            ,
 20        (the “Certificate 


Date”). Set forth on Attachment A is
the computation of the Collateral Value of the Collateral and certain other  information  required 
by  Section  7(e)(iii) 
of  the  Credit  Agreement  as  of 
                                                             , 20   (the “Valuation
Date”), calculated in accordance with the definition of “Collateral Value”
contained in the Credit Agreement and the other provisions of the Credit
Agreement (including Schedule I thereto). 


 


The
undersigned hereby certifies that (i) the information on Attachment A correctly
sets forth  the Collateral Value (in the aggregate and for each category of
Collateral) and the Outstanding Letters of Credit as of the Valuation Date;
(ii) the Outstanding Letters of Credit do not exceed the aggregate Collateral
Value as of the Valuation Date; and (iii) nothing has come to  the  attention 
of  the  undersigned to cause  the undersigned to believe that Bank does not
have a first priority perfected  Lien on and security interest in the
Collateral set forth on Attachment A as of the Certificate Date. 


 


[Signature
page to follow] 












ACCOUNT PARTY: 


 


EVEREST
REINSURANCE (BERMUDA), LTD. 


 


By:______________________________ 


Name:


Title:












ATTACHMENT A 


 


COLLATERAL VALUE OF THE COLLATERAL 


 


	
   

  Type
  of Security 

  	
   

  Value

  	
   

  Advance Rates 

  	
  Collateral
  Value

  
	
  Cash
  (denominated in USD) or Certificate of Deposit 

  	
  $                      

  	
  100%

  	
  $                      

  
	
  Mutual
  Funds

  	
   

   

  $                      

   

  $                      

  	
   

   

  75%

   

  75%

  	
   

   

  $                     

   

  $                     

  
	
  Listed
  (on a nationally recognized U.S. exchange) Money Market Mutual Funds 

   

  U.S.
  Fixed Income Mutual Funds (excluding high yield and tax exempt) 

   

   

   

   

  
	
  U.S.
  Government Bills, Notes, and U.S. Government Sponsored Agency Securities(1)

  	
   

  	
   

  	
   

  
	
  Maturing
  in 5 years or less 

  	
  $                      

  	
  95%

  	
  $                      

  
	
  Maturing
  in more than 5 years 

  	
  $                      

  	
  90%

  	
  $                      

  
	
  High
  Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (AA/Aa2 or better) 

  	
   

  	
   

  	
   

  
	
  Maturing
  in 5 years or less 

  	
  $                      

  	
  90%

  	
  $                      

  
	
  Maturing
  in more than 5 years 

  	
  $                      

  	
  85%

  	
  $                      

  
	
  Intermediate
  Grade U.S. Corporate/Municipal/Structured Fixed Income Securities (BBB/Baa2
  or better but worse than AA/Aa2) (2)

  	
   

  	
   

  	
   

  
	
  Maturing
  in 5 years or less 

  	
  $                      

  	
  85%

  	
  $                      

  
	
  Maturing
  in more than 5 years 

  	
  $                      

  	
  80%

  	
  $                      

  
	
  Commercial Paper 

  	
   

  	
   

  	
   

  
	
  A1 or P1 Graded Commercial Paper 

  	
  $                      

  	
  85%

  	
  $                      

  
	
  A2 or P2 Graded Commercial Paper 

  	
  $                      

  	
  80%

  	
  $                      

  
	
  Total
  Collateral Value 

  	
   

  	
   

  	
  $                      

  






 


 


 


Notes: 


 


(1)  U.S. Government Bills/Notes/Sponsored
Agencies include: U.S. Treasury Bills, Notes, and Bonds; U.S. Government Agency
and U.S. Government Sponsored Enterprise (GSE) Securities. Also included are
Mortgage- Backed Securities (MBSs). GSE and MBS securities include Fannie Mae,
Freddie Mac, Ginnie 



Mae, FHLB System Banks, and
Federal Farm Credit Banks. 


 


(2)  Securities rated BBB or Baa2 shall not
comprise greater than 20% of Collateral Value. 












Outstanding Letters of
Credit 


 


	
   

  Beneficiary

  	
   

  Issue
  Date

  	
  Undrawn
  Amount

  	
  Unreimbursed Drawings

  
	
   

  	
   

  	
  $                      

  	
  $                      

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total
  Outstanding Letters of Credit 

  	
   

  	
  $                      

  	
  $                      

  






 


Ratio of aggregate Collateral Value to
Outstanding Letters of Credit:                                         


 


  












IN
WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed by their duly
authorized officers as of the date first above written.


Everest Reinsurance (Bermuda), Ltd.


By:          /S/
CHRISTOPHER S. DOWNEY


                Name:
  Christopher S. Downey


                Title:      Managing
Director and Chief Executive Officer


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 





 Error! Unknown document property name.  







Signature Page to First Amendment to Standby Letter of Credit





 








  
   




 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


By:          /S/
WILLIAM R. GOLEY


                Name:
  William R. Goley


                Title:      Managing
Director


 


 


 


WELLS
FARGO BANK, NATIONAL ASSOCIATION


 


 


By:
    /S/ WILLIAM R. GOLEY


      
Name:           William R. Goley


      
Title:              Managing Director


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit





 





SCHEDULE
I


 


COLLATERAL BASE


 


	
  Type of Security

  	
  Advance Rates

  
	
  Cash (denominated in USD) or Certificate of Deposit

  	
  100%

  
	
  Mutual Funds

  	 
	
  Listed (on a nationally recognized
  U.S. exchange) Money Market Mutual Funds

  	
  90%

  
	
  U.S. Fixed Income Mutual Funds
  (excluding high yield and tax exempt)

  	
  80%

  
	
  U.S. Government Bills, Notes, and U.S. Government
  Sponsored Agency Securities(1)

  	 
	
  Maturing in 5 years or less

  	
  95%

  
	
  Maturing in more than 5 years

  	
  90%

  
	
  High Grade U.S. Corporate/Municipal/Structured Fixed
  Income Securities (AA/Aa2 or better)

  	 
	
  Maturing in 5 years or less

  	
  90%

  
	
  Maturing in more than 5 years

  	
  85%

  
	
  Intermediate Grade U.S. Corporate/Municipal/Structured
  Fixed Income Securities (BBB/Baa2 or better but worse than AA/Aa2)(2)

  	 
	
  Maturing in 5 years or less

  	
  85%

  
	
  Maturing in more than 5 years

  	
  80%

  
	
  Commercial Paper

  	 
	
  A1 or P1 Graded Commercial Paper

  	
  85%

  
	
  A2 or P2 Graded Commercial Paper

  	
  80%

  






 


Notes:


 


(1)         
U.S. Government Bills/Notes/Sponsored Agencies include: U.S. Treasury Bills,
Notes, and Bonds; U.S. Government Agency and U.S. Government Sponsored
Enterprise (GSE) Securities. Also included are Mortgage-Backed Securities
(MBSs). GSE and MBS securities include Fannie Mae, Freddie Mac, Ginnie Mae,
FHLB System Banks, and Federal Farm Credit Banks.


 


(2)
Securities rated BBB or Baa2 shall not comprise greater than 20% of Collateral
Value.


 


 


 


 


 


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit








EXHIBIT
A


FORM OF


OFFICER’S COMPLIANCE CERTIFICATE


THIS CERTIFICATE is given
pursuant to Section 7(c)(i) of the Standby Letter of Credit Agreement, dated as
of February 23, 2021 (as amended, restated, modified or supplemented from
time to time, the “Credit Agreement,” the terms defined therein being used
herein as therein defined), among Everest Reinsurance (Bermuda), Ltd., a
company incorporated and existing under the laws of Bermuda (the “Account
Party”), and Wells Fargo Bank, National Association (the “Bank”).


The undersigned hereby
certifies that:


1.            He or she is
the [Chief Executive Officer] [Chief Financial Officer] [Vice
President—Finance] [Principal Accounting Officer] [Treasurer] [Assistant
Treasurer] of the Account Party.


2.            Enclosed
with this Certificate are copies of the financial statements of the Account
Party and its Subsidiaries as of _____________, and for the [________-month
period] [year] then ended, required to be delivered under Section 7(a) of the
Credit Agreement.  Such financial statements have been prepared in accordance with
GAAP [(subject to the absence of notes required by GAAP and subject to normal
year-end adjustments)]  and present fairly, in all material respects, the
financial condition of the Account Party and its Subsidiaries on a consolidated
basis as of the date indicated and the results of operations of the Account
Party and its Subsidiaries on a consolidated basis for the period covered
thereby.


3.            The
undersigned has reviewed the terms of the Credit Agreement and has made, or
caused to be made under the supervision of the undersigned, a review in
reasonable detail of the transactions and condition of the Account Party and
its Subsidiaries during the accounting period covered by such financial
statements.


4.            The
examination described in paragraph 3 above did not disclose, and the
undersigned has no knowledge of the existence of, any Default or Event of
Default during or at the end of the accounting period covered by such financial
statements or as of the date of this Certificate [, except as set forth below.


Describe here or in a separate
attachment any exceptions to paragraph 4 above by listing, in reasonable
detail, the nature of the Default or Event of Default, the period during which
it existed and the action that Everest has taken or proposes to take with respect
thereto].


5.            Attached to
this Certificate as Annex A is a covenant compliance worksheet reflecting the
computation of the financial covenants set forth in Section 8 of the Credit
Agreement as of the last day of the period covered by the financial statements
enclosed herewith.


  


IN WITNESS WHEREOF, the
undersigned has executed and delivered this Certificate as of the _______ day
of _____________, ____.


EVEREST
REINSURANCE (BERMUDA), LTD.


By:______________________________________





Name:____________________________________


Title:_____________________________________


 


 


ANNEX A


 


COVENANT COMPLIANCE WORKSHEET


 


A.  Minimum Total Shareholder’s Equity


(Section 8(a) of the Credit Agreement)


 


	
  (1)  Total
  Shareholder’s Equity as of the date of determination

  	
   

  	
   

  	
   

  
	
  a)    Required:

  	
   

  	
   

  	
  $2,143,539,163.00

  
	
  b)    Actual:

  	
   

  	
   

  	
  $        
                  

  






 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 





 


Signature Page to First Amendment to Standby Letter of Credit





 





B.  Financial Strength Rating


(Section
8(b) of the Credit Agreement)


 


	
  (1)  Has the Account
  Party maintained a financial strength rating by A.M. Best Company at all
  times from the date of the most recently delivered Officer’s Compliance
  Certificate to and including the date hereof?

  	
  ___  Yes

  	
  ___  No

  
	
  (2)  Has the financial
  strength rating by A.M. Best Company for the Account Party been equal to or
  better than “B++” at all times during the period described in line (1) above?

  	
  ___  Yes

  	
  ___  No

  






 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit


 





 





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EXHIBIT
B


 


FORM OF


COLLATERAL VALUE CERTIFICATE


 


____________, 20__


Wells Fargo Corporate Banking


550 South Tryon Street


MAC D1086-330


Charlotte, NC 28202


Attention: William R. Goley


Ladies and Gentlemen:


Reference is made to the
Standby Letter of Credit Agreement, dated as of February 23, 2021, among
Everest Reinsurance (Bermuda), Ltd., a company incorporated and existing under
the laws of Bermuda (the “Account Party”), and Wells Fargo BaPnk, National
Association (the “Bank”) (as amended or otherwise modified from time to time,
the “Credit Agreement”).  Terms defined in the Credit Agreement are, unless
otherwise defined herein or the context otherwise requires, used herein as
defined therein.


This Collateral Value
Certificate is delivered pursuant to Section 7(e)(iii) of the Credit
Agreement.  The date of this Collateral Value Certificate is _____________,
20__ (the “Certificate Date”).  Set forth on Attachment A is the computation of
the Collateral Value of the Collateral and certain other information required
by Section 7(e)(iii) of the Credit Agreement as of ______________, 20__ (the
“Valuation Date”), calculated in accordance with the definition of “Collateral
Value” contained in the Credit Agreement and the other provisions of the Credit
Agreement (including Schedule I thereto).


The undersigned hereby
certifies that (i) the information on Attachment A correctly sets forth the
Collateral Value (in the aggregate and for each category of Collateral) and the
Outstanding Letters of Credit as of the Valuation Date; (ii) the Outstanding
Letters of Credit do not exceed the aggregate Collateral Value as of the
Valuation Date; and (iii) nothing has come to the attention of the undersigned
to cause the undersigned to believe that the Bank does not have a first
priority perfected Lien on and security interest in the Collateral set forth on
Attachment A as of the Certificate Date.


 


[Signature page to follow]


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit








 Error! Unknown document property name.  







 


ACCOUNT PARTY:


 


EVEREST REINSURANCE (BERMUDA), LTD.


 


By:  ____________________________________


       Name:


       Title:


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit





 





 Error! Unknown document property name.  







ATTACHMENT
A


 


COLLATERAL VALUE OF THE COLLATERAL


 


	
  Type of Security

  	
  Value

  	
  Advance Rates

  	
  Collateral Value

  
	
  Cash (denominated in USD) or Certificate of Deposit

  	
  $________

  	
  100%

  	
  $________

  
	
  Mutual Funds

  	
   

  	 	
   

  
	
  Listed (on a nationally recognized
  U.S. exchange) Money Market Mutual Funds

   

  U.S. Fixed Income Mutual Funds
  (excluding high yield and tax exempt)

  	
  $________

   

  $________

  	
  90%

   

  80%

  	
  $________

   

  $________

  
	
  U.S. Government Bills, Notes, and U.S. Government
  Sponsored Agency Securities(1)

  	
   

  	 	
   

  
	
  Maturing in 5 years or less

  	
  $________

  	
  95%

  	
  $________

  
	
  Maturing in more than 5 years

  	
  $________

  	
  90%

  	
  $________

  
	
  High Grade U.S. Corporate/Municipal/Structured Fixed
  Income Securities (AA/Aa2 or better)

  	
   

  	 	
   

  
	
  Maturing in 5 years or less

  	
  $________

  	
  90%

  	
  $________

  
	
  Maturing in more than 5 years

  	
  $________

  	
  85%

  	
  $________

  
	
  Intermediate Grade U.S. Corporate/Municipal/Structured
  Fixed Income Securities (BBB/Baa2 or better but worse than AA/Aa2)(2)

  	
   

  	 	
   

  
	
  Maturing in 5 years or less

  	
  $________

  	
  85%

  	
  $________

  
	
  Maturing in more than 5 years

  	
  $________

  	
  80%

  	
  $________

  
	
  Commercial Paper

  	
   

  	 	
   

  
	
  A1 or P1 Graded Commercial Paper

  	
  $________

  	
  85%

  	
  $________

  
	
  A2 or P2 Graded Commercial Paper

  	
  $________

  	
  80%

  	
  $________

  
	
  Total Collateral Value

  	
   

  	
   

  	
  $________

  






 


 


 


Notes: 


 


(1)         
U.S. Government Bills/Notes/Sponsored Agencies include: U.S. Treasury Bills,
Notes, and Bonds; U.S. Government Agency and U.S. Government Sponsored
Enterprise (GSE) Securities. Also included are Mortgage-Backed Securities
(MBSs). GSE and MBS securities include Fannie Mae, Freddie Mac, Ginnie Mae,
FHLB System Banks, and Federal Farm Credit Banks.


 


(2)
Securities rated BBB or Baa2 shall not comprise greater than 20% of Collateral
Value.


 


 


 


 








  
   




 


 


 


Signature Page to First Amendment to Standby Letter of Credit





 





Outstanding
Letters of Credit




	
  Beneficiary

  	
  Issue Date

  	
  Undrawn 

  Amount

  	
  Unreimbursed
  Drawings

  
	
   

  	
   

  	
  $________

  	
  $________

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total Outstanding Letters of Credit

  	
   

  	
  $________

  	
  $________

  








 


Ratio of aggregate Collateral Value to
Outstanding Letters of Credit: ____________


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Signature Page to First Amendment to Standby Letter of Credit


 







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