Exhibit
10.1
CREDIT AGREEMENT
dated as of
August 6, 2013
between
XLIT LTD.,
as the Company,
and
The LENDERS Party Hereto,
CITICORP USA, INC.,
as Administrative Agent and Issuing Lender
$100,000,000
TABLE OF CONTENTS
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Page |
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| ARTICLE I |
1 |
| |
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| DEFINITIONS |
1 |
| SECTION 1.01. Defined Terms |
1 |
| SECTION 1.02. Terms Generally |
11 |
| SECTION 1.03. Accounting Terms |
12 |
| |
|
| ARTICLE II |
12 |
| |
|
| THE CREDITS |
12 |
| SECTION
2.01. Reserved |
12 |
| SECTION 2.02. Reserved |
12 |
| SECTION 2.03. Reserved |
12 |
| SECTION 2.04. Reserved |
12 |
| SECTION 2.05. Participated Letters of Credit |
12 |
| SECTION
2.06. Reserved |
16 |
| SECTION
2.07. Loans and Borrowings |
16 |
| SECTION
2.08. Requests for Borrowings |
17 |
| SECTION
2.09. Funding of Borrowings |
18 |
| SECTION
2.10. Interest Elections |
19 |
| SECTION 2.11. Termination and Increase of the Commitments |
20 |
| SECTION 2.12. Repayment of Loans; Evidence of Debt |
20 |
| SECTION 2.13. Prepayment of Loans |
21 |
| SECTION 2.14. Fees |
21 |
| SECTION 2.15. Interest |
21 |
| SECTION 2.16. Alternate Rate of Interest |
22 |
| SECTION 2.17. Increased Costs |
23 |
| SECTION 2.18. Break Funding Payments |
24 |
| SECTION 2.19. Taxes |
25 |
| SECTION 2.20. Payments Generally; Pro Rata Treatment; Sharing of Set-offs |
28 |
| SECTION 2.21. Mitigation Obligations; Replacement of Lenders |
29 |
| SECTION 2.22. Defaulting Lenders |
30 |
| |
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| ARTICLE III |
32 |
| |
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| Reserved |
32 |
| |
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| ARTICLE IV |
32 |
| |
|
| REPRESENTATIONS AND WARRANTIES |
32 |
| SECTION 4.01. Organization; Powers |
32 |
| SECTION 4.02. Authorization; Enforceability |
32 |
| SECTION 4.03. Governmental Approvals; No Conflicts |
32 |
| SECTION 4.04. Financial Condition; No Material Adverse Change |
32 |
| SECTION 4.05. Properties |
33 |
| SECTION 4.06. Litigation and Environmental Matters |
33 |
| SECTION 4.07. Compliance with Laws and Agreements |
33 |
|
| SECTION 4.08. Investment Company Status |
34 |
| SECTION 4.09. Taxes |
34 |
| SECTION 4.10. ERISA |
34 |
| SECTION 4.11. Disclosure |
34 |
| SECTION 4.12. Use of Credit |
34 |
| SECTION 4.14. Withholding Taxes |
35 |
| SECTION 4.15. Stamp Taxes |
35 |
| SECTION 4.16. Legal Form |
35 |
| |
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| ARTICLE V |
35 |
| |
|
| CONDITIONS |
35 |
| SECTION 5.01. Effective Date |
35 |
| SECTION 5.02. Each Credit Event |
36 |
| |
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| ARTICLE VI |
37 |
| |
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| COVENANTS |
37 |
| SECTION 6.01 Reporting |
37 |
| SECTION 6.02 Reserved |
38 |
| SECTION 6.03 Corporate Existence |
38 |
| SECTION 6.04 Maintenance of Properties |
38 |
| SECTION 6.05 Statement by the Company as to Default |
39 |
| SECTION 6.06 Limitation on Liens on Stock of Designated Subsidiaries |
39 |
| SECTION 6.07 Waiver of Certain Covenants |
39 |
| |
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| ARTICLE VII |
40 |
| |
|
| RESERVED |
40 |
| |
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| ARTICLE VIII |
40 |
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| EVENTS OF DEFAULT |
40 |
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| ARTICLE IX |
42 |
| |
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| THE ADMINISTRATIVE AGENT |
42 |
| |
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| ARTICLE X |
44 |
| |
|
| MISCELLANEOUS |
44 |
| SECTION 10.01. Notices |
44 |
| SECTION 10.02. Waivers; Amendments |
45 |
| SECTION 10.03. Expenses; Indemnity; Damage Waiver |
46 |
| SECTION 10.04. Successors and Assigns |
47 |
| SECTION 10.05. Survival |
50 |
| SECTION 10.06. Counterparts; Integration; Effectiveness |
51 |
| SECTION 10.07. Severability |
51 |
| SECTION 10.08. Right of Setoff |
51 |
| SECTION 10.09. Governing Law; Jurisdiction; Etc |
51 |
| SECTION 10.10. WAIVER OF JURY TRIAL |
52 |
| SECTION 10.11. Headings |
53 |
| SECTION 10.12. Treatment of Certain Information; Confidentiality |
53 |
|
| SECTION 10.13. Judgment Currency |
54 |
| SECTION 10.14. USA PATRIOT Act |
54 |
| SECTION 10.15. NO FIDUCIARY DUTY |
54 |
| SECTION 10.16. ILLEGALITY |
55 |
| SCHEDULE I |
- |
Commitments |
| SCHEDULE II |
- |
Litigation |
| SCHEDULE III |
- |
Environmental Matters |
| |
|
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| EXHIBIT A |
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Form of Assignment and Assumption |
| EXHIBIT B |
- |
Form of Borrowing Request |
| EXHIBIT C |
- |
Form of Interest Election Request |
| EXHIBIT D |
- |
Form of Letter of Credit |
CREDIT AGREEMENT dated as of August 6, 2013
(as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), among XLIT LTD.,
an exempted company incorporated in the Cayman Islands with limited liability (the “Company”), the LENDERS party
hereto, and CITICORP USA, INC., as Administrative Agent and Issuing Lender.
The Company has requested that the Issuing
Lender issue letters of credit for its account and that the Lenders make loans to it in an aggregate face or principal amount not
exceeding the aggregate amount of Commitments at any one time outstanding, and the Issuing Lender and Lenders are prepared to issue
such letters of credit and make such loans upon the terms and conditions hereof. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Defined Terms.
As used in this Agreement, the following terms have the meanings specified below:
“ABR”, when used in reference
to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate
determined by reference to the Alternate Base Rate.
“Adjusted LIBO Rate” means,
for the Interest Period for any Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/100
of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest
Period.
“Administrative Agent”
means Citicorp USA, Inc., in its capacity as administrative agent for the Lenders hereunder.
“Administrative Questionnaire”
means an Administrative Questionnaire in a form supplied by the Administrative Agent.
“Affiliate” means, with
respect to a specified Person, another Person that directly, or indirectly, Controls or is Controlled by or is under common Control
with the Person specified.
“Aggregate Credit Exposure”
means the aggregate amount of the Credit Exposures of each of the Lenders.
“Agreement” shall have
the meaning assigned to such term in the introductory paragraph of this Agreement.
“Alternate Base Rate”
means, for any day, a rate per annum equal to the highest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective
Rate for such day plus 1/2 of 1% and (c) the Adjusted LIBO Rate for an Interest Period of one month that would be calculated
as of such day (or, if such day is not a Business Day, as of the next preceding
Business Day) plus 1.0%. Any change in the
Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate shall be effective
from and including the date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, as the
case may be.
“Applicable Percentage”
means, with respect to any Lender, the percentage of the Commitments of all the Lenders represented by such Lender’s Commitment.
If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently
in effect, giving effect to any assignments.
“Assignment and Assumption”
means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required
by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative
Agent.
“Availability Period”
means the period from and including the Effective Date to and including the Commitment Termination Date.
“Bankruptcy Event” means
with respect to any Person, such Person becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator,
trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation
of its business appointed for it, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment,
provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership
interest, in such Person by a Governmental Authority or instrumentality thereof, provided, further, that such ownership interest
does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement
in the United States of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or
instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Board” means the Board
of Governors of the Federal Reserve System of the United States of America.
“Borrowing” means, with
respect to the Company, (a) all ABR Loans of the Company made, converted or continued on the same date or (b) all Eurodollar Loans
of the Company that have the same Interest Period.
“Borrowing Request” means
a request by the Company for a Borrowing in accordance with Section 2.08 substantially in the form of Exhibit B hereto.
“Business Day” means any
day (a) that is not a Saturday, Sunday or other day on which commercial banks in New York City, London or the Cayman Islands are
authorized or required by law to remain closed and (b) if such day relates to a borrowing of, a payment or prepayment of principal
of or interest on, a continuation or conversion of or into, or the Interest Period for, a Eurodollar Loan, or to a notice with
respect to any such borrowing, payment, prepayment, continuation, conversion, or Interest Period, that is also a day on which dealings
in Dollar deposits are carried out in the London interbank market.
“Capital Stock” for any
entity means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests
in (however designated) shares issued by that entity. The term “Capital Stock” shall include preferred stock, but exclude
any debt securities convertible into such Capital Stock.
“Change in Law” means
(a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation
or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance
by any Lender (or, for purposes of Section 2.17(b), by any lending office of such Lender or by such Lender’s holding company,
if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or
issued after the date of this Agreement.
“Code” means the Internal
Revenue Code of 1986, as amended from time to time.
“Commitment” means, with
respect to any Lender, the commitment of such Lender to make Loans and to acquire participations in Participated Letters of Credit,
as any such commitment may be reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The amount of each Lender’s Commitment is set forth on Schedule I or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Commitment, as applicable. The initial aggregate amount of the Lenders’ Commitments
is $100,000,000.
“Commitment
Termination Date”
means September 20, 2015.
“Company” shall have the
meaning assigned to such term in the introductory paragraph of this Agreement.
“Company Certificate”
means a certificate signed by a director of the Company or the secretary of the Company.
“Control” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through
the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled”
have meanings correlative thereto.
“Credit Documents” means,
collectively, this Agreement, the Fee Letter and the Letter of Credit Documents.
“Credit Exposure” means,
with respect to any Lender at any time, the sum of the outstanding principal amount of such Lender’s Loans and its LC Exposure
at such time.
“Default” means any event
or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become
an Event of Default.
“Defaulting Lender” means
any Lender that (a) has failed, within three Business Days of the date required to be funded or paid, to (i) fund any portion of
its participations in
Letters of Credit or (ii) pay over to the Company any other amount required to be paid by it hereunder, in
either case, unless such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s
determination that one or more conditions precedent to funding (which conditions precedent, together with the applicable default,
if any, shall be specifically identified in writing) has not been satisfied, (b) has notified the Company in writing, or has made
a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement
(unless such writing or public statement states that such position is based on such Lender’s determination that one or more
conditions precedent to funding (which conditions precedent, together with the applicable default, if any, shall be specifically
identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after request
by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender
that it will comply with its obligations to fund participations in then outstanding Letters of Credit, provided that such Lender
shall cease to be a Defaulting Lender pursuant to this clause (c) upon such receipt of such certification in form and substance
reasonably satisfactory to the Administrative Agent, or (d) has become the subject of a Bankruptcy Event.
“Designated Subsidiary”
means any present or future consolidated subsidiary of the Company that is a regulated insurance company, the assets of which constitute
at least 20% of the Company’s consolidated assets.
“Dollars” or “$”
refers to lawful money of the United States of America.
“Effective Date” means
the date on which the conditions specified in Section 5.01 are satisfied (or waived in accordance with Section 10.02).
“Environmental Laws” means
any Law, whether now existing or subsequently enacted or amended, relating to (a) pollution or protection of the environment, including
natural resources, (b) exposure of Persons, including but not limited to employees, to Hazardous Materials, (c) protection of the
public health or welfare from the effects of products, by-products, wastes, emissions, discharges or releases of Hazardous Materials
or (d) regulation of the manufacture, use or introduction into commerce of Hazardous Materials, including their manufacture, formulation,
packaging, labeling, distribution, transportation, handling, storage or disposal.
“Environmental Liability”
means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties
or indemnities), of the Company or any Subsidiary resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract or agreement pursuant to which liability is
assumed or imposed with respect to any of the foregoing; it being understood that no Person shall be deemed to incur any Environmental
Liability as a result of insuring against any Environmental Liability.
“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to time.
“ERISA Affiliate” means
any trade or business (whether or not incorporated) that, together with the Company, is treated as a single employer under Section
414(b) or (c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
“ERISA Event” means (a)
any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an
“accumulated funding deficiency” (as defined for purposes of Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (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 Company or any of the Company’s ERISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by the Company
or any ERISA Affiliate 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 Company or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the Company or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Company or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
“Eurodollar”, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the Loan(s) constituting such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
“Event of Default” has
the meaning assigned to such term in Article VIII.
“Excluded Taxes” means,
with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation
of the Company hereunder, or under any Credit Document, (a) income or franchise Taxes imposed on (or measured by) its net income,
net profits or overall gross receipts (including, without limitation, branch profits or similar taxes) by the United States of
America, or by any jurisdiction under the laws of which such recipient is organized or resident, in which such recipient’s
principal office is located or with which such recipient has any other connection (other than a connection that arises solely by
reason of the Company having executed, delivered or performed its obligations, or such recipient having received a payment under
this Agreement or any Credit Document), (b) any Tax imposed pursuant to a law in effect at the time such recipient first becomes
a party to this Agreement or designates a new lending office (or at the time such recipient acquires an additional interest, but
only with respect to Taxes attributable to such additional interest) except to the extent that such recipient (or such recipient’s
assignor, if any) was entitled at the time of the designation of a new lending office (or assignment) to receive additional amounts
from the Company with respect to such Tax under Section 2.19(a) or 2.19(c), (c) any Tax that is attributable to a recipient’s
failure to comply with Section 2.19(f), and (d) any Tax imposed pursuant to FATCA.
“Exchange Act” means the
Securities and Exchange Act of 1934, as amended.
“FATCA” means Sections
1471 through 1474 of the Code as of the date of this Agreement (including any amended or successor provisions thereto, to the extent
substantially comparable thereto), any regulations or official interpretations thereof, any applicable intergovernmental agreement
entered into in respect thereof, and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
“Federal Funds Effective Rate”
means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day,
the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
“Fee Letter” means the
Fee Letter, dated the date hereof, among the Company and the Administrative Agent, as amended, supplemented and modified from time
to time.
“GAAP” means generally
accepted accounting principles in the United States of America.
“Governmental Authority”
means the government of the United States of America, or of any other nation (including the European Union), or any political subdivision
thereof, whether state or local, 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.
“Hazardous Materials”
means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including
petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious
or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Indemnified Taxes” means
(a) Taxes imposed on the Administrative Agent or any Lender on or with respect to any payment hereunder or under any Credit Document,
other than Excluded Taxes and (b) Other Taxes.
“Indemnitee” has the meaning
assigned to such term in Section 10.03(b).
“Interest Election Request”
means a request by the Company to convert or continue a Borrowing in accordance with Section 2.10 substantially in the form of
Exhibit C hereto.
“Interest Payment Date”
means (a) with respect to any ABR Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the last day of each Interest
Period therefor and, in the case of any Interest Period of more than three months’ duration, each day prior to the last day
of such Interest Period that occurs at three-month intervals after the first day of such Interest Period.
“Interest Period” means,
for any Eurodollar Loan or Borrowing, the period commencing on the date of such Loan or Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months thereafter, as specified in the applicable Borrowing
Request or Interest Election Request; provided that (i) if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would
fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding
day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest
Period. For purposes hereof, the date of a Loan initially shall be the date on which such Loan is made and thereafter shall be
the effective date of the most recent conversion or continuation of such Loan, and the date of a Borrowing comprising Loans that
have been converted or continued shall be the effective date of the most recent conversion or continuation of such Loans.
“Issuing Lender” means
with respect to any Participated Letter of Credit, Citicorp USA, Inc., in its capacity as the issuer of such Participated Letter
of Credit hereunder.
“Law” means any law (including
common law), constitution, statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of any Governmental
Authority.
“LC Disbursement” means,
with respect to any Participated Letter of Credit, a payment made by the Issuing Lender thereof pursuant thereto.
“LC Exposure” means, at
any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements under Letters of Credit that have not yet been reimbursed by or on behalf of the Company at such
time. The LC Exposure of any Lender at any time shall be its Applicable Percentage of the total LC Exposure at such time.
“Lender Funding Supplement”
means, (a) with respect to any Borrowing under Section 2.07 with respect to which the Company has accepted the rate offered by
the Administrative Agent, the rate per annum, not to exceed 100% of the Citigroup CDS Spread, offered by the Administrative Agent
with respect to such Borrowing and (b) otherwise, the Citigroup CDS Spread. As used in this definition, “Citigroup CDS
Spread” means 100% of Citigroup Inc.’s three-year offer-side credit default swap spread (as obtained by the Administrative
Agent from the Markit Group Limited website) (a) in the case of any Eurodollar Rate Loan, on the date two Business Days prior to
the first day of the Interest Period for such Eurodollar Rate Loan, and (b) in the case of any ABR Loan, on the day that such ABR
Loan is made (each day described in clauses (a) and (b) being a “Determination Date”). The Administrative Agent
will determine the Lender Funding Supplement for each Loan no later than 11:00 a.m. New York time on the Determination Date applicable
to such Loan; provided, however, that in the event that the Lender Funding Supplement for such Loan is not available
from Markit Group Limited on the Determination Date applicable to such Loan, the Lender Funding Supplement for such Loan will be
100% of Citigroup Inc.’s three-year offer-side credit
default swap spread as determined by the
Administrative Agent on the basis of quotations from leading dealers in the market for credit default swaps selected by the mutual
agreement of the Administrative Agent and the Company. The Administrative Agent shall use commercially reasonable efforts to obtain
at least three quotations for such credit default swap spread on such Determination Date and, if two or more quotations are obtained,
the Lender Funding Supplement for such Loan shall be the arithmetic average of such quotations. If only one quotation is obtained
and, in the Administrative Agent’s good faith judgment, such quotation is a reasonable value for such credit default swap
spread, the Lender Funding Supplement for such Loan shall be such quotation. If the Lender Funding Supplement for any Loan cannot
be determined pursuant to the preceding provisions of this definition, the Administrative Agent and the Company shall use commercially
reasonable efforts to promptly agree on an alternative method of determination. If no alternative method is agreed on within 30
days after the Determination Date, the Lender Funding Supplement shall be reasonably determined by the Administrative Agent using
customary investment banking conventions and the Administrative Agent will provide the Company with the calculation in reasonable
detail of such Lender Funding Supplement.
“Lenders” means the Persons
listed on Schedule I and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption or an
agreement pursuant to the terms of Section 2.11(c), other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Assumption (it being understood and agreed that each Lender may, at its option, issue any Letter of Credit to the
Company by causing any foreign or domestic branch or Affiliate of such Lender to issue such Letter of Credit; provided that
any exercise of such option shall not affect the obligations of the Company in respect of such Letter of Credit in accordance with
the terms hereunder).
“Letter of Credit Documents”
means, with respect to any Letter of Credit, collectively, any application therefor and any other 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.
“Letters of Credit” means
the Participated Letters of Credit.
“LIBO Rate” means, for
the Interest Period for any Eurodollar Borrowing, the rate appearing on Reuters Page LIBOR01 (or on any successor or substitute
page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently
provided on such page of such service, as determined by the Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for the offering of Dollar deposits with a maturity equal to
the duration of such Interest Period. In the event that such rate is not available at such time for any reason, then the LIBO Rate
for such Interest Period shall be the rate at which Dollar deposits of $5,000,000 and for a maturity equal to the duration of such
Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
“Lien” means, with respect
to any asset, any mortgage, deed of trust, pledge, lien, security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional sale or title retention arrangement, and any assignment,
deposit arrangement or lease intended as, or having the effect of, security.
“Loans” means the loans
made by the Lenders to the Company pursuant to Section 2.07.
“Margin Stock” means “margin
stock” within the meaning of Regulations T, U and X of the Board.
“Material Adverse Effect”
means a material adverse effect on: (a) the assets, business, financial condition or operations of the Company and its Subsidiaries
taken as a whole; or (b) the ability of the Company to perform any of its payment or other material obligations under this Agreement.
“Multiemployer Plan” means
a multiemployer plan as defined in Section 4001(a)(3) of ERISA.
“NAIC” means the National
Association of Insurance Commissioners.
“NAIC Approved Bank” means
any Person that is a bank listed on the most current “Bank List” of banks approved by the NAIC (the “NAIC
Approved Bank List”).
“NAIC Approved Bank List”
has the meaning assigned to such term in the definition of “NAIC Approved Bank” in this Section.
“Non-U.S. Benefit Plan”
means any plan, fund (including any superannuation fund) or other similar program established or maintained outside the United
States by the Company or any of its Subsidiaries, with respect to which the Company or such Subsidiary has an obligation to contribute,
for the benefit of employees of the Company or such Subsidiary, which plan, fund or other similar program provides, or results
in, the type of benefits described in Section 3(1) or 3(2) of ERISA, and which plan is not subject to ERISA or the Code.
“Other Taxes” means any
and all present or future stamp or documentary taxes or any other similar excise or property Taxes, arising from any payment made
hereunder or from the execution, delivery or enforcement of this Agreement or any other Credit Document, including any interest,
additions to tax or penalties applicable thereto.
“Participant” has the
meaning assigned to such term in Section 10.04(c)(i).
“Participant Register”
has the meaning assigned to such term in Section 10.04(c)(iii).
“Participated Letters of Credit”
means letters of credit issued under Section 2.05.
“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 (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 Company or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Prime Rate” means the
rate of interest per annum publicly announced from time to time by Citibank, N.A. as its prime rate in effect at its principal
office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced
as being effective.
“Quarterly Date” means
the last Business Day of March, June, September and December in each year, the first of which shall be the first such day after
the date hereof.
“Register” has the meaning
assigned to such term in Section 10.04.
“Reimbursement Obligation”
means the obligation hereunder of the Company to reimburse with respect to any Participated Letter of Credit, the Issuing Lender
thereof for amounts drawn under such Letter of Credit.
“Related Parties” means,
with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents,
partners and advisors of such Person and such Person’s Affiliates.
“Required Lenders” means,
at any time, Lenders having Commitments representing more than 50% of the aggregate amount of the Commitments at such time; provided
that, if the Commitments have expired or been terminated, “Required Lenders” means Lenders having more than 50% of
the Aggregate Credit Exposure at such time.
“SEC” means the Securities
and Exchange Commission or any successor entity.
“Securities Act” means
the Securities Act of 1933, as amended.
“Significant Subsidiary”
means, at any time, each Subsidiary of the Company that, as of such time, meets the definition of a “significant subsidiary”
under Regulation S-X of the SEC.
“Standby Letter of Credit Agreement”
means the Continuing Agreement for Standby Letters of Credit, dated as of August 6, 2013, as amended, between XLIT LTD. and Citibank,
N.A.
“Statutory Reserve Rate”
means, for any day (or for the Interest Period for any Eurodollar Borrowing), a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which
the Administrative Agent is
subject on such day (or, with respect to
an Interest Period, the denominator of which is the number one minus the arithmetic mean of such aggregates for the days in such
Interest Period) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency
liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation
D. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subsidiary” means, with
respect to any Person (the “parent”), at any date, any corporation (or similar entity) of which a majority of
the shares of outstanding capital stock normally entitled to vote for the election of directors (regardless of any contingency
which does or may suspend or dilute the voting rights of such capital stock) is at such time owned directly or indirectly by the
parent or one or more subsidiaries of the parent. Unless otherwise specified, “Subsidiary” means a Subsidiary of the
Company.
“Taxes” means any and
all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority,
including any interest, additions to tax or penalties applicable thereto.
“Transactions” means the
execution, delivery and performance by the Company of this Agreement and the other Credit Documents, the issuance of Letters of
Credit and the borrowing of Loans.
“Type”, when used in reference
to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans constituting such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.
“Withdrawal Liability”
means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
“Withholding Agent” means
the Company and the Administrative Agent.
“XL Group” means XL Group
plc, an Irish public limited company.
SECTION 1.02. Terms Generally. The
definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes”
and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument, statute, law, rule, regulation or other document herein shall
be construed as referring to such agreement, instrument, statute, law, rule, regulation or other document as from time to time
amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns,
(c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed
to refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein
to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections
of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed
to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash,
securities, accounts and contract rights.
SECTION 1.03. Accounting Terms.
Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company
requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP, or
in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company that the Required
Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or
after such change in GAAP, or in the application thereof, then such provision shall be interpreted on the basis of GAAP, as in
effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith.
ARTICLE II
THE CREDITS
SECTION 2.01. Reserved.
SECTION 2.02. Reserved.
SECTION 2.03. Reserved.
SECTION 2.04. Reserved.
SECTION 2.05. Participated Letters
of Credit.
(a) General. Subject to the terms
and conditions set forth herein, the Company may request the Issuing Lender to issue, at any time and from time to time prior to
the close of business on the day that is five Business Days prior to the Commitment Termination Date, Participated Letters of Credit
for its own account substantially in the form of Exhibit D. Each Participated Letter of Credit shall be in such form as is consistent
with the requirements of the applicable regulatory authorities reasonably required by the Administrative Agent (in consultation
with the Company) or as otherwise agreed to by the Administrative Agent and the Company. Participated Letters of Credit issued
hereunder shall constitute utilization of the Commitments.
(b) Notice of Issuance, Amendment, Renewal
or Extension. To request the issuance of a Participated Letter of Credit (or the amendment, renewal or extension of an outstanding
Participated Letter of Credit), the Company shall hand deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the Issuing Lender) to the Issuing Lender and the Administrative Agent (reasonably in advance
of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Participated Letter of Credit, or identifying the Participated Letter
of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment, renewal or extension (which shall
be a Business Day), the date on which such Participated Letter of Credit is to expire (which shall comply with paragraph (d) of
this Section), the amount of such Participated Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Participated Letter of Credit. Subject to the terms and
conditions of this Agreement, a Participated Letter of Credit shall be issued, amended, renewed or extended, as the case may be,
on the requested date. If Participated Letters of Credit issued in connection with the same request shall provide for the automatic
extension of the expiry date thereof unless the Issuing Lender thereof or the Administrative Agent gives notice that such expiry
date shall not be extended, then the Administrative Agent (acting on behalf of the relevant Issuing Lender) will give such notice
for all such Participated Letters of Credit if requested to do so by the Issuing Lender in a notice given to the Administrative
Agent not more than 60 days, but not less than 45 days, prior to the current expiry date of such Participated Letter of Credit.
If requested by the Issuing Lender, the Company also shall submit a letter of credit application on the Issuing Lender’s
standard form in connection with any request for a Participated Letter of Credit. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement
submitted by the Company to, or entered into by the Company with, the Issuing Lender relating to a Participated Letter of Credit,
the terms and conditions of this Agreement shall control.
(c) Limitations on Amounts. A Participated
Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment, renewal or extension of each
Participated Letter of Credit the Company shall be deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the Aggregate Credit Exposure of the Lenders shall not exceed the aggregate amount of the Commitments
and (ii) the Credit Exposure of the Issuing Lender (determined for these purposes without giving effect to the participations therein
of the Lenders pursuant to paragraph (e) of this Section) shall not exceed the Commitment of such Issuing Lender.
(d) Expiry Date. Each Participated
Letter of Credit shall expire at or prior to the close of business on the date that is two Business Days prior to the Commitment
Termination Date.
(e) Participations. By the issuance
of a Participated Letter of Credit (or an amendment to a Participated Letter of Credit increasing the amount thereof) by the Issuing
Lender, and without any further action on the part of the Issuing Lender or the Lenders, the Issuing Lender hereby grants to each
Lender, and each Lender hereby acquires from the Issuing Lender, a participation in such Participated Letter of Credit equal to
such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Participated Letter of Credit.
The obligation of each Lender under a Participated Letter of Credit shall be several and not joint. Each Lender acknowledges and
agrees that its obligation to acquire participations pursuant to this paragraph in respect of Participated Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension
of any Participated Letter of Credit or the occurrence and continuance of a Default or termination of
the Commitments. In consideration and in furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees
to pay to
the Administrative Agent, for account of the Issuing Lender, such Lender’s Applicable Percentage of each LC Disbursement
made by the Issuing Lender in respect of any Participated Letter of Credit promptly upon the request of the Issuing Lender at any
time from the time such LC Disbursement is made until such LC Disbursement is reimbursed by the Company or at any time after any
reimbursement payment is required to be refunded to the Company for any reason. Such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Promptly following receipt by the Administrative Agent of any payment from the
Company pursuant to the next following paragraph, the Administrative Agent shall distribute such payment to the Issuing Lender
or, to the extent that the Lenders have made payments pursuant to this paragraph to reimburse the Issuing Lender, then to such
Lenders and the Issuing Lender as their interests may appear. Any payment made by a Lender pursuant to this paragraph to reimburse
the Issuing Lender for any LC Disbursement shall not relieve the Company of its obligation to reimburse such LC Disbursement.
(f) Reimbursement. If any Lender shall
make any LC Disbursement in respect of any Participated Letter of Credit, the Company agrees to reimburse such Lender in respect
of such LC Disbursement by paying to the Administrative Agent an amount equal to such LC Disbursement not later than 2:00 p.m.,
New York City time, on (i) the Business Day that the Company receives notice of such LC Disbursement, if such notice is received
prior to 10:00 a.m., New York City time, or (ii) the Business Day immediately following the day that the Company receives such
notice, if such notice is not received prior to such time. It is understood that the Company may elect to use the proceeds of a
borrowing pursuant to Section 2.08 to finance its Reimbursement Obligations pursuant to this Section 2.05(f), whether or not an
Event of Default has occurred and is continuing and, if an Event of Default has occurred and is continuing or the Company shall
not have satisfied its Reimbursement Obligations within the time period set forth above, the Company shall be deemed to have elected
to finance its Reimbursement Obligations with a borrowing pursuant to Section 2.08.
If the Company fails to make such payment
when due, the Administrative Agent shall notify each Lender of the applicable LC Disbursement, the payment then due from the Company
in respect thereof and such Lender’s Applicable Percentage thereof.
(g) Obligations Absolute. The obligations
of the Company with respect to any Letter of Credit to reimburse LC Disbursements in respect of any Participated Letter of Credit
as provided in paragraph (f) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly
in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity
or enforceability of any Participated Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under a Participated Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Lender under a Participated Letter of Credit against presentation
of a draft or other document that does not comply strictly with the terms of such Participated Letter of Credit (provided
that the Company shall not be obligated to reimburse such LC Disbursements unless payment is made against presentation of a draft
or other document that at least substantially complies with the terms of such Participated Letter of Credit), (iv) the occurrence
of any Default or (v) any other event or circumstance whatsoever,
whether or not similar to any of the
foregoing, that might, but for the provisions of this Section, constitute a legal or equitable
discharge of the obligations of the Company hereunder.
Neither the Administrative Agent, the Lenders
nor the Issuing Lender, nor any of their respective Related Parties, shall have any liability or responsibility by reason of or
in connection with the payment or failure to make any payment under a Participated Letter of Credit (irrespective of any of the
circumstances referred to in the preceding sentence) as a result of determining whether drafts or other documents presented under
a Participated Letter of Credit comply with the terms thereof, or any error, omission, interruption, loss or delay in transmission
or delivery of any draft, notice or other communication under or relating to any Participated Letter of Credit (including any document
required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Lender; provided that the foregoing shall not be construed to excuse the Issuing Lender from
liability to the Company to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are
hereby waived by the Company to the extent permitted by applicable law) suffered by the Company that are caused by the Issuing
Lender’s gross negligence or willful misconduct when determining whether drafts and other documents presented under a Participated
Letter of Credit comply with the terms hereof. The parties hereto expressly agree that:
(i) the Issuing Lender may accept
documents that appear on their face to be in substantial compliance with the terms of a Participated Letter of Credit without responsibility
for further investigation, regardless of any notice or information to the contrary, and may make payment upon presentation of documents
that appear on their face to be in substantial compliance with the terms of such Participated Letter of Credit;
(ii) the Issuing Lender shall have
the right, in its sole discretion, to decline to accept such documents and to make such payment if such documents are not in strict
compliance with the terms of such Participated Letter of Credit; and
(iii) this sentence shall establish
the standard of care to be exercised by the Issuing Lender when determining whether drafts and other documents presented under
a Participated Letter of Credit comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted by
applicable law, any standard of care inconsistent with the foregoing).
(h) Disbursement Procedures. The Issuing
Lender shall, within a reasonable time following its receipt thereof, examine all documents purporting to represent a demand for
payment under a Participated Letter of Credit. The Issuing Lender shall promptly after such examination notify the Administrative
Agent and the Company with respect to such Letter of Credit by telephone (confirmed by telecopy or email) of such demand for payment
and whether the Issuing Lender has made or will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Company of its obligation to reimburse the Issuing Lender and the Lenders with
respect to any such LC Disbursement.
(i) Interim Interest. If any LC Disbursement
is made with respect to a Participated Letter of Credit, then, unless such LC Disbursement is reimbursed in full on the date
such LC Disbursement is made, the unpaid
amount thereof shall bear interest, subject to Section 2.15(c), for each day from and including the date such LC Disbursement
is made to but excluding the date that such LC Disbursement is reimbursed, at the rate per annum equal to 1% plus the Alternate
Base Rate. Interest accrued pursuant to this paragraph shall be for account of the Issuing Lender, except that interest accrued
on and after the date of payment by any Lender pursuant to paragraph (f) of this Section to reimburse the Issuing Lender shall
be for account of such Lender to the extent of such payment.
(j) Reserved.
(k) Adjustment of Applicable Percentages.
Notwithstanding anything herein to the contrary, upon (i) each increase of the Commitments pursuant to Section 2.11(c), each Lender’s
participation in each Participated Letter of Credit then outstanding shall automatically be adjusted to reflect its Applicable
Percentage after giving effect to such increase and (ii) the assignment by a Lender of all or a portion of its Commitment and its
interests in the Participated Letters of Credit pursuant to an Assignment and Assumption, the respective assigning Lender’s
participation in each Participated Letter of Credit then outstanding shall automatically be adjusted to reflect, and the respective
assignee Lender shall be deemed to acquire a participation in each such Participated Letter of Credit in an amount equal to, its
Applicable Percentage after giving effect to such assignment.
SECTION 2.06. Reserved.
SECTION 2.07. Loans and Borrowings.
(a) Loans. Subject to the terms and
conditions set forth herein, each Lender agrees to make Loans, in each case, to the Company from time to time during the Availability
Period in an aggregate principal amount that will not result in (i) such Lender’s Credit Exposure exceeding such Lender’s
respective Commitment, or (iii) the Aggregate Credit Exposure exceeding the aggregate Commitments of all Lenders. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Company may borrow, prepay and reborrow Loans.
(b) Obligations of Lenders. Except
as provided herein, each Loan shall be made as part of a Borrowing consisting of one or more Loans of the same Type made by the
Lenders ratably in accordance with their respective Applicable Percentages of the Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments
of the Lenders to make Loans hereunder are several and no Lender shall be responsible for any other Lender’s failure to make
Loans as required.
(c) Type of Loans. Subject to Section
2.15, each Borrowing shall be constituted entirely of ABR Loans or of Eurodollar Loans as the Company may request in accordance
herewith. Each Lender at its option may make any Loan to a foreign jurisdiction by causing any domestic or foreign branch or Affiliate
of such Lender to make such Loan; provided that any exercise of such option shall not affect
the obligation of the Company to repay such Loan in accordance with the terms of this Agreement.
(d) Minimum Amounts; Limitation on Number
of Borrowings. Each Eurodollar Borrowing shall be in an aggregate amount of $10,000,000 or a larger multiple of $1,000,000.
Each ABR Borrowing shall be in an aggregate amount equal to $10,000,000 or a larger multiple of $1,000,000; provided that
an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Commitments or that is requested
to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(f). Borrowings of more than one Type may be
outstanding at the same time; provided that there shall not at any time be more than a total of ten Eurodollar Borrowings
outstanding.
(e) Limitations on Interest Periods.
Notwithstanding any other provision of this Agreement, the Company shall not be entitled to request (or to elect to convert to
or continue as a Eurodollar Borrowing) any Borrowing if the Interest Period requested therefor would end after the Commitment Termination
Date.
(f) Pro Rata Borrowings. Loans made
as part of a Borrowing shall be made by the Lenders ratably in accordance with their respective Applicable Percentages of the Commitments.
SECTION 2.08. Requests for Borrowings.
(a) Notice by the Company. To request
a Borrowing, the Company shall notify the Administrative Agent of such request by telephone (i) in the case of a Eurodollar Borrowing,
not later than 1:00 p.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case
of an ABR Borrowing, not later than 1:00 p.m., New York City time, on the date of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Borrowing Request.
(b) Content of Borrowing Requests.
Each telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.07:
(i) the aggregate amount of the
requested Borrowing;
(ii) the date of such Borrowing,
which shall be a Business Day;
(iii) whether such Borrowing is
to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar
Borrowing, the Interest Period therefor, which shall be a period contemplated by the definition of the term “Interest Period”
and permitted under Section 2.07(e); and
(v) the location and number of the
Company’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.09.
(c) Notice by the Administrative Agent
to the Lenders. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent
shall
advise each relevant Lender of the details
thereof and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.
(d) Failure to Elect. If no election
as to the Type of a Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the requested Borrowing shall be made instead as an ABR Borrowing.
SECTION 2.09. Funding of Borrowings.
(a) Funding by Lenders. Each Lender
shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by
12:00 noon, New York City time (or 1:00 p.m., New York City time with respect to ABR Loans requested by the Company no later than
11:00 a.m. on the same day), to the account of the Administrative Agent most recently designated by it for such purpose by notice
to the Lenders. The Administrative Agent will make such Loans available to the Company by promptly crediting the amounts so received,
in like funds, to an account of the Company maintained with the Administrative Agent in New York City and designated by the Company
in the applicable Borrowing Request; provided, that Loans made to refinance the reimbursement of a LC Disbursement as provided
in Section 2.05(f) shall be remitted by the Administrative Agent to the Issuing Lender.
(b) Presumption by the Administrative
Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing
(or in the case of any ABR Borrowing, on or prior to the proposed date of such Borrowing) that such Lender will not make available
to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption,
make available to the Company a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and the Company severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount
is made available to the Company to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender,
the Federal Funds Effective Rate or (ii) in the case of the Company, the interest rate applicable to ABR Loans. If such Lender
pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.
SECTION 2.10. Interest Elections.
(a) Elections by the Company. The
Loans constituting each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case
of a Eurodollar Borrowing, shall have the Interest Period specified in such Borrowing Request. Thereafter, the Company may elect
to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and,
in the case of a Eurodollar Borrowing, may elect the Interest Period therefor, all as provided in this Section. The Company may
elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be
allocated ratably among the Lenders holding the Loans constituting such Borrowing, and the Loans constituting each such portion
shall be considered a separate Borrowing.
(b) Notice of Elections. To make an
election pursuant to this Section, the Company shall notify the Administrative Agent of such election by telephone by the time
that a Borrowing Request would be required under Section 2.08 if the Company were requesting a Borrowing of the Type resulting
from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request.
(c) Content of Interest Election Requests.
Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.07:
(i) the Borrowing to which such
Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions
thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and
(iv) of this paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election
made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing
is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing
is a Eurodollar Borrowing, the Interest Period therefor after giving effect to such election, which shall be a period contemplated
by the definition of the term “Interest Period” and permitted under Section 2.07(e).
(d) Notice by the Administrative Agent
to the Lenders. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender
of the details thereof and of such Lender’s portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default.
If the Company fails to deliver a timely and complete Interest Election Request with respect to a Eurodollar Borrowing prior to
the end of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein, at the end of such Interest
Period such Borrowing shall be converted to an ABR Borrowing.
Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so
notifies the Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued
as a Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period therefor.
SECTION 2.11. Termination and Increase
of the Commitments.
(a) Scheduled Termination. Unless
previously terminated, the Commitments shall terminate at the close of business on the Commitment Termination Date.
(b) Reserved.
(c) Increases to Commitments. The
Company shall have the right, at any time by notice to the Administrative Agent, to increase the Commitments hereunder by having
an existing Lender increase its Commitment then in effect (with the consent of the Issuing Lender and such Lender in their sole
discretion). Such increase shall be implemented pursuant to a modification of Schedule I, which modification shall require only
the consent of the Company, the Lender whose commitment is being increased and the Issuing Lender.
SECTION 2.12. Repayment of Loans;
Evidence of Debt.
(a) Repayment. The Company hereby
unconditionally promises to pay to the Administrative Agent for account of the relevant Lenders the outstanding principal amount
of the Loans made to the Company on the Commitment Termination Date.
(b) Maintenance of Records by Lenders.
Each Lender shall maintain in accordance with its usual practice records evidencing the indebtedness of the Company to such Lender
resulting from each Loan made by such Lender to the Company, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(c) Maintenance of Records by the Administrative
Agent. The Administrative Agent shall maintain records in which it shall record (i) the amount of each Loan made to the Company
hereunder, the Type thereof and each Interest Period therefor, (ii) the amount of any principal or interest due and payable or
to become due and payable from the Company to each Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for account of the Lenders and each Lender’s share thereof.
(d) Effect of Entries. The entries
made in the records maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence of
the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative
Agent to maintain such records or any error therein shall not in any manner affect the obligation of the Company to repay the Loans
in accordance with the terms of this Agreement.
(e) Promissory Notes. Any Lender may
request that Loans made by it to the Company be evidenced by a promissory note of the Company. In such event, the Company shall
prepare, execute and deliver to such Lender a promissory note payable to such Lender (or, if
requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent.
SECTION 2.13. Prepayment of Loans.
(a) Right to Prepay Borrowings. The Company
shall have the right at any time and from time to time to prepay any Borrowing in whole or in part, without premium or penalty,
subject to the requirements of this Section.
(b) Notices, Etc. The Company shall notify
the Administrative Agent by telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case of prepayment of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment; provided that each repayment of Borrowings shall be applied to repay any outstanding
ABR Borrowings before any other Borrowings; provided further that no such notice shall be required for a repayment
on the Commitment Termination Date. If the Company fails to make a timely selection of the Borrowing or Borrowings to be repaid
or prepaid, such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in
the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period
to be repaid first). Each payment of a Borrowing shall be applied ratably to the Loans included in such Borrowing.
Each such notice shall be irrevocable and shall
specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid. Promptly following receipt
of any such notice relating to a Borrowing, the Administrative Agent shall advise the relevant Lenders of the contents thereof.
Each partial prepayment of any Borrowing shall be in an amount that would be permitted in the case of a Borrowing of the same Type
as provided in Section 2.07. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.15.
SECTION 2.14. Fees.
The Company agrees to pay to the Administrative
Agent the fees set forth in the Fee Letter, payable at the times, in the amounts and on the calculation basis set forth therein.
SECTION 2.15. Interest.
(a) ABR Loans. The Loans constituting
each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Lender Funding
Supplement; provided, that any Loan constituting an ABR Borrowing made to satisfy the Company’s Reimbursement Obligations
under Section 2.05(f) due to a draw on a Letter of Credit due to an “event of default” under the Standby Letter of
Credit Agreement shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Lender Funding Supplement
minus the Federal Funds Effective Rate for so long as and to the extent that (x) the Company continues to pay such interest
in cash on each applicable Interest Payment Date and (y) the applicable beneficiaries of
the letters of credit issued under the
Standby Letter of Credit Agreement shall not have drawn under such letters of credit.
(b) Eurodollar Loans. The Loans constituting
each Eurodollar Borrowing shall bear interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest Period for such
Borrowing plus the Lender Funding Supplement; provided, that any Loan constituting a Eurodollar Borrowing made to
satisfy the Company’s Reimbursement Obligations under Section 2.05(f) due to a draw on a Letter of Credit due to an “event
of default” under the Standby Letter of Credit Agreement shall bear interest at a rate per annum equal to the Adjusted LIBO
Rate for the Interest Period for such Borrowing plus the Lender Funding Supplement minus the Federal Funds Effective
Rate for so long as and to the extent that (x) the Company continues to pay such interest in cash on each applicable Interest Payment
Date and (y) the applicable beneficiaries of the letters of credit issued under the Standby Letter of Credit Agreement shall not
have drawn under such letters of credit.
(c) Default Interest. If any principal
of any Loan or if any amount of reimbursement obligation, interest, fees and other amounts payable by the Company hereunder is
not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Payment of Interest. Accrued interest
on each Loan shall be payable by the Company in arrears on each Interest Payment Date for such Loan and upon the date the Commitments
terminate; provided that (x) interest accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(y) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Loan prior to the Commitment
Termination Date), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (z) in the event of any conversion of any Eurodollar Borrowing prior to the end of the Interest Period therefor,
accrued interest on such Borrowing shall be payable on the effective date of such conversion.
(e) Computation. All interest hereunder
shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of days elapsed in the relevant period (including the
first day but excluding the last day). The applicable Alternate Base Rate or Adjusted LIBO Rate shall be determined by the Administrative
Agent and notified to the Company, and such determination shall be conclusive absent manifest error.
SECTION 2.16. Alternate Rate of Interest. If prior to the commencement of the Interest Period for any Eurodollar Borrowing:
(a) the Administrative Agent determines
in good faith (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised
by the Required Lenders (acting in good faith) that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly
reflect the cost to such Lenders of making or maintaining their respective Loans included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice
thereof to the Company and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative
Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or the continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective and such Borrowing (unless prepaid) shall be continued as, or converted to, an ABR Borrowing and (ii) if
any Borrowing Request requests a Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.17. Increased Costs.
(a) Increased Costs Generally. If any
Change in Law shall:
(i) impose, modify or deem applicable
any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended
by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate);
(ii) impose on any Lender or the London
interbank market any other condition affecting this Agreement, any Letter of Credit (or any participation therein) or any Eurodollar
Loan made by such Lender; or
(iii) change the basis of taxation of
payments to any Lender in respect thereof (except for Indemnified Taxes, Excluded Taxes and changes in the rate of tax on the overall
net income of such Lender);
and the result of any of the foregoing shall
be to increase the cost to such Lender of making or maintaining, or participating in, any Letter of Credit (or of maintaining any
participation therein) or Eurodollar Loan (or of maintaining its obligation to make any such Loan) or to reduce the amount of any
sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the Company agrees that
it will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred
or reduction suffered. Notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines, requirements and directives
promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or by United States or foreign regulatory authorities, in each case pursuant to Basel III, and (ii) the Dodd-Frank Wall
Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder or issued
in connection
therewith or in implementation thereof, shall in each case be deemed to be a Change in Law, regardless of the date
enacted, adopted or issued.
(b) Capital Requirements. If any Lender
determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on
such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement
or the Letters of Credit issued or participated in, or the Loans made, by such Lender to a level below that which such Lender or
such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s
policies and the policies of such Lender’s holding company with respect to capital adequacy or liquidity), then from time
to time the Company will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate
of a Lender setting forth such Lender’s good faith determination of the amount or amounts necessary to compensate such Lender
or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to
the Company and shall be conclusive and binding upon all parties hereto absent manifest error. The Company shall pay such Lender
the amount shown as due on any such certificate within 10 days after receipt thereof by the Company.
(d) Delay in Requests. Failure or delay
on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s
right to demand such compensation; provided that the Company shall not be required to compensate a Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior to the date that such Lender notifies the Company
of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive,
then the 90 day period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Comparable Treatment. Notwithstanding
any other provision of this Section, no Lender shall demand compensation for any increased cost or reduction pursuant to this Section
if such Lender is not demanding such compensation in similar circumstances under comparable provisions of other credit agreements.
SECTION 2.18. Break Funding Payments.
In the event of (a) the payment of any principal
of any Eurodollar Loan other than on the last day of an Interest Period therefor (including as a result of an Event of Default),
(b) the conversion of any Eurodollar Loan other than on the last day of an Interest Period therefor, (c) the failure
to borrow, convert, continue or prepay any Loan on the date specified in any notice delivered pursuant hereto (regardless of whether
such notice is permitted to be revocable under Section 2.13(b) and is revoked in accordance herewith), or (d) the assignment
as a result of a request by the Company pursuant to Section 2.21(b) of any Eurodollar Loan other than on the last day of an
Interest Period therefor, then, in any such event, the Company shall compensate each Lender for the loss attributable to such event.
The loss to any Lender attributable to any such event shall be deemed to be an amount determined by such Lender to be equal to
the
excess, if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the principal amount of
such Loan for the period from the date of such payment, conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or continue, the duration of the Interest Period that would
have resulted from such borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to the Adjusted
LIBO Rate for such Interest Period, over (ii) the amount of interest that such Lender would earn on such principal
amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid
by such Lender (or an affiliate of such Lender) for Dollar deposits from other banks in the eurodollar market at the commencement
of such period. A certificate of any Lender setting forth such Lender’s good faith determination of any amount or amounts
that such Lender is entitled to receive pursuant to this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt
thereof by the Company.
SECTION 2.19. Taxes.
(a) Payments Free of Taxes. Any and all
payments by or on account of the Company hereunder, or under any Credit Document, shall be made free and clear of and without deduction
for or withholding of any amounts in respect of Taxes, unless such withholding is required by applicable law as determined in good
faith by the applicable Withholding Agent; provided that if any Indemnified Taxes are required to be withheld from any amounts
payable to the Administrative Agent or any Lender, then (i) the sum payable by the Company shall be increased as necessary
so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the
Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such amounts
been withheld and (ii) such amounts shall be withheld and paid to the relevant Governmental Authority in accordance with applicable
law.
(b) Payment of Other Taxes by the Company.
In addition, the Company shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Company. The
Company shall indemnify the Administrative Agent and each Lender, within 10 days after written demand to the Company therefor,
for the full amount of any Indemnified Taxes and Other Taxes (including Indemnified Taxes imposed or asserted on or attributable
to amounts payable under this Section) paid by the Administrative Agent or such Lender, as the case may be, and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes,
as the case may be, were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting
forth the Administrative Agent’s or such Lender’s, as the case may be, good faith determination of the amount of such
payment or liability (along with a reasonably detailed explanation and computation of such payment or liability) delivered to the
Company by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive as between
such Lender or the Administrative Agent, as the case may be, and the Company absent manifest error.
(d) Each Lender shall indemnify the Administrative
Agent for the full amount of any Taxes imposed by any Governmental Authority that are attributable to such Lender and that are
payable or paid by the Administrative Agent, together with all interest, penalties, reasonable costs and expenses arising therefrom
or with respect thereto, as determined by the Administrative Agent in good faith. A certificate as to the amount of such payment
or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.
(e) Evidence of Payments. As soon as practicable
after any payment of Indemnified Taxes or Other Taxes by the Company to a Governmental Authority, the Company on behalf of the
Company shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(f) Exemptions. (1) Each recipient of
payments under this Agreement or any Credit Document (or a Participant, in which case such Participant’s obligations to the
Company and the Administrative Agent described in this Section 2.19(f) shall also extend to the Lender from which the related participation
shall have been purchased) (i) that is a “United States Person” as defined in Section 7701(a)(30) of the Code (a “U.S.
Lender”) shall deliver to the Company and the Administrative Agent two properly completed and duly signed copies of U.S.
Internal Revenue Service (“IRS”) Form W-9 (or any successor form) certifying that such U.S. Lender is exempt
from U.S. federal withholding tax or (ii) that is not a “United States Person” as defined in Section 7701(a)(30) of
the Code (a “Non-U.S. Lender”) shall deliver to the Company and the Administrative Agent (I) two copies
of IRS Form W-8BEN, Form W-8ECI or Form W-8IMY(or any successor form) (together with any applicable underlying IRS forms),
(II) in the case of a Non-U.S. Lender claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c)
of the Code with respect to payments of “portfolio interest”, a certification to the effect that such Non-U.S. Lender
is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder”
of the Company within the meaning of Section 881(c)(3)(B) of the Code, (c) a “controlled foreign corporation” described
in Section 881(c)(3)(C) of the Code or (d) conducting a trade or business in the United States with which the relevant interest
payments are effectively connected; and the applicable IRS Form W-8 (or any successor form) properly completed and duly executed
by such Non-U.S. Lender claiming complete exemption from U.S. federal withholding tax on payments under this Agreement and
the other Credit Documents, or (III) any other form prescribed by applicable requirements of U.S. federal income tax law as a basis
for claiming exemption from or a reduction in U.S. federal withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable requirements of law to permit the Company and the Administrative Agent to determine the withholding
or deduction required to be made. Such forms shall be delivered by each U.S. Lender and each Non-U.S. Lender on or before
the date it becomes a party to this Agreement (or, in the case of any Participant, on or before the date such Participant purchases
the related participation) and from time to time thereafter upon the request of the Company or the Administrative Agent. In addition,
each U.S. Lender and each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by it. Each U.S. Lender and each Non-U.S. Lender shall promptly notify the Company and the Administrative
Agent at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Company
(or any other form of certification
adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision
of this Section, no Non-U.S. Lender shall be required to deliver any form pursuant to this Section that such Non-U.S.
Lender is not legally able to deliver.
(2) If a payment made to any recipient under
any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such recipient were to fail to comply
with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable),
such recipient shall deliver to the Company and the Administrative Agent at the time or times prescribed by law and at such time
or times reasonably requested by the Company or the Administrative Agent such documentation prescribed by applicable law (including
as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company or
the Administrative Agent as may be necessary for the Company and the Administrative Agent to comply with their obligations under
FATCA and to determine whether such recipient has complied with such recipient’s obligations under FATCA or to determine the amount
to deduct and withhold from such payment. Solely for purposes of this Section 2.19(f)(2), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement.
(3) Each Lender that is entitled to an exemption
from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Company is located, or any treaty
to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Company (with a copy
to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Company or the Administrative
Agent, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made
without withholding or at a reduced rate; provided that such Lender is legally entitled to complete, execute and deliver
such documentation and in its reasonable judgment such completion, execution or submission would not materially prejudice its legal
or commercial position.
(4) Each recipient agrees that if any form
or certification it previously delivered under this Section 2.19(f) expires or becomes obsolete or inaccurate in any respect, it
shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability
to do so.
(g) If the Administrative Agent or a Lender determines,
in its reasonable discretion, that it has received a refund from the relevant Governmental Authority of any Taxes or Other Taxes
as to which it has been indemnified by the Company or with respect to which the Company has paid additional amounts pursuant to
this Section, it shall pay over such refund to the Company (but only to the extent of indemnity payments made, or additional amounts
paid, by the Company under this Section with respect to the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Company, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount paid over to the Company (plus any penalties, interest or other charges imposed by the relevant
Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required
to repay such refund to such Governmental Authority. This Section shall not be construed to require the
Administrative Agent or
any Lender to make available its tax returns (or any other information relating to its taxes not expressly required to be made
available hereunder which it reasonably deems confidential) to the Company or any other Person.
SECTION 2.20. Payments Generally; Pro
Rata Treatment; Sharing of Set-offs.
(a) Payments by the Company. The Company
shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements
or interest thereon, under Section 2.17, 2.18 or 2.19, or otherwise) or under any other Credit Document (except to the extent
otherwise provided therein) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative
Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at its offices at Two Penns Way, Suite 110, New Castle, Delaware 19720 except
payments pursuant to Sections 2.17, 2.18, 2.19 and 10.03, which shall be made directly to the Persons entitled thereto. The
Administrative Agent shall distribute any such payments received by it for account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall
be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments.
If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest
and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then
due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Pro Rata Treatment. Except to the
extent otherwise provided herein: (i) each reimbursement of LC Disbursements shall be made to the relevant Lenders, each Borrowing
shall be made from the Lenders, each payment of fees under Section 2.14 shall be made for account of the relevant Lenders
and any interest paid in respect of any Reimbursement Obligation shall be applied to the respective Commitments (or, in the case
of any Borrowing, the respective commitment to make Loans hereunder) of the Lenders, in each case pro rata according to the amounts
of their respective Commitments (or, in the case of any Borrowing, the respective commitment to make Loans hereunder or, in the
case of any such reimbursement or payment after the termination of the Commitments, pro rata according to the Aggregate Credit
Exposure); (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective
Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case
of conversions and continuations of Loans); (iii) each payment or prepayment of principal of Loans by the Company shall be
made for account of the Lenders pro rata according to the respective unpaid principal amounts of the Loans of the Company being
paid or prepaid that are owed to such Lenders and (iv) each
payment of interest on Loans by the Company shall be made for
account of the Lenders pro rata according to the amounts of interest on such Loans then due and payable thereunder.
(d) Sharing of Payments by Lenders. If
any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal
of or interest on any of its Loans or LC Disbursements or accrued interest thereon resulting in such Lender receiving payment of
a greater proportion of the aggregate amount of its Loans and/or LC Disbursements and accrued interest thereon then due than the
proportion received by any other relevant Lender, then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Loans and/or LC Disbursements of such other Lenders to the extent necessary so that the benefit
of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans and/or LC Disbursements and accrued interest thereon; provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall
be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this
paragraph shall not be construed to apply to any payment made by the Company pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any
of its Loans or LC Disbursements to any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Company consents to the foregoing and agrees, to the extent it
may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Company rights of set-off and counterclaim with respect to such participation as fully as if such Lender
were a direct creditor of the Company in the amount of such participation.
(e) Presumptions of Payment. Unless the
Administrative Agent shall have received notice from the Company prior to the date on which any payment is due to the Administrative
Agent for account of the relevant Lenders hereunder that the Company will not make such payment, the Administrative Agent may assume
that the Company has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute
to the relevant Lenders the amount due. In such event, if the Company has not in fact made such payment, then each of the Lenders
severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest
thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative
Agent. If any Lender shall fail to make any payment required to be made by it pursuant to this Agreement, then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative
Agent for account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations
are fully paid.
SECTION 2.21. Mitigation Obligations;
Replacement of Lenders.
(a) Designation of a Different Lending Office.
If any Lender requests compensation under Section 2.17, or if the Company is required to pay any additional amount or
indemnification
payment to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.19, then such Lender shall
use reasonable efforts to designate a different lending office for funding or booking its Loans and/or Letters of Credit hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or Affiliates, if, in the reasonable judgment
of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.17
or 2.19, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense
and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay all reasonable costs and expenses incurred
by any Lender in connection with any such designation or assignment. Nothing in this Section 2.21(a) shall affect or postpone any
of the obligations of the Company or the rights of any Lender pursuant to Sections 2.17 or 2.19.
(b) Replacement of Lenders. If any Lender
(i) requests compensation under Section 2.17, or if the Company is required to pay any additional amount to any Lender or
any Governmental Authority for account of any Lender pursuant to Section 2.19, (ii) becomes a Defaulting Lender, (iii) has
refused to consent to any waiver or amendment with respect to any Credit Document that requires the consent of all the Lenders
or of such Lender as a Lender directly and adversely affected by such waiver or amendment and has been consented to by the Required
Lenders or (iv) if any Lender ceases to be a NAIC Approved Bank, then the Company may, at its sole expense and effort, upon notice
to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 10.04), all its interests, rights and obligations under this Agreement to
an assignee selected by the Company that shall assume such obligations (which assignee may be another Lender, if a Lender accepts
such assignment); provided that (i) the Company shall have received the prior written consent of the Administrative
Agent, which consent shall not unreasonably be withheld, (ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Loans and/or LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable
to it hereunder, from the assignee (to the extent of such outstanding principal, LC Disbursements and accrued interest and fees)
or the Company (in the case of all other amounts) and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.17 or payments required to be made pursuant to Section 2.19, such assignment will result
in a reduction in such compensation or payments. A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment
and delegation cease to apply.
(c) The Company shall not be responsible for
any costs and expenses incurred by any Lender that arranges for its obligations under the Letters of Credit to be confirmed by
a NAIC Approved Bank or by such confirming bank.
SECTION 2.22. Defaulting Lenders.
Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following
provisions shall apply for so long as such Lender is a Defaulting Lender:
(a) fees shall cease to accrue on the unfunded
portion of the Commitment of such Defaulting Lender pursuant to Section 2.14;
(b) the Commitment and the Credit Exposure of
such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder
(including any consent to any amendment, waiver or other modification pursuant to Section 10.02); provided, that this clause
(b) shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the
consent of such Lender or each Lender affected thereby;
(c) if any LC Exposure exists at the time such
Lender becomes a Defaulting Lender and no Default or Event of Default has occurred and is continuing then:
(i) all or any part of the LC Exposure
of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable
Percentages but only to the extent the sum of all non-Defaulting Lenders’ aggregate LC Exposure plus the aggregate amount
of all non-Defaulting Lenders’ outstanding Loans plus such Defaulting Lender’s LC Exposure does not exceed the total
of all non-Defaulting Lenders’ Commitments;
(ii) if the Company cash collateralizes
any portion of such Defaulting Lender’s LC Exposure that has not been reallocated pursuant to clause (i) above, the Company
shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.14 with respect to such Defaulting Lender’s
LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized;
(iii) if the LC Exposure of the non-Defaulting
Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.14 shall be adjusted
in accordance with such non-Defaulting Lenders’ Applicable Percentages; and
(iv) if all or any portion of such Defaulting
Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice
to any rights or remedies of the Issuing Lender or any other Lender hereunder, all fees payable under Section 2.14 with respect
to such Defaulting Lender’s LC Exposure shall be payable to the Administrative Agent until and to the extent that such LC
Exposure is reallocated and/or cash collateralized; and
(d) so long as such Lender is a Defaulting Lender,
no Issuing Lender shall be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure
and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Commitments of the non-Defaulting Lenders
and/or cash collateral will be provided by the Company in accordance with clause (c) above, and participating interests in any
newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with clause (c)(i)
above (and such Defaulting Lender shall not participate therein).
In the event that the Administrative Agent, the
Company and each Issuing Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender
to be a Defaulting Lender, then the aggregate LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s
Commitment.
ARTICLE III
Reserved
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders
and Issuing Lender that:
SECTION 4.01. Organization; Powers.
The Company and each of its Significant Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization, has all requisite power and authority
to carry on its business as now conducted and, except where the failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect, is qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions are within the Company’s corporate powers and have been duly authorized by all necessary corporate
and, if required, by all necessary shareholder action. This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, examination or similar
laws of general applicability affecting the enforcement of creditors’ rights and (b) the application of general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
SECTION 4.03. Governmental Approvals; No Conflicts. The Transactions and the entry into this Agreement (a) do
not require any consent or approval of (including any exchange control approval), registration or filing with, or any other action
by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate
any applicable law or regulation or the charter, by-laws or other organizational documents of the Company or any of its Significant
Subsidiaries or any order of any Governmental Authority, (c) will not violate or result in a default under any material indenture,
agreement or other instrument binding upon the Company or any of its Significant Subsidiaries or assets, or give rise to a right
thereunder to require any payment to be made by any such Person, and (d) will not result in the creation or imposition of
any Lien on any asset of the Company or any of its Significant Subsidiaries.
SECTION 4.04. Financial Condition;
No Material Adverse Change.
(a) Financial Condition. The Company
has heretofore furnished to the Lenders XL Group’s Report on Form 10-K filed with the SEC for the fiscal year ended December
31, 2012). Such financial statements present fairly in all material respects the financial position and results of operations of
XL Group and its consolidated Subsidiaries as of such date and for such period on a consolidated basis in accordance with GAAP
subject.
(b) No Material Adverse Change. Since
December 31, 2012, there has been no material adverse change in the assets, business, financial condition or operations of the
Company and its Subsidiaries, taken as a whole, except as disclosed in filings made by XL Group on or prior to the Effective Date
with the SEC pursuant to the Exchange Act.
SECTION 4.05. Properties.
(a) Property Generally. The Company and
each of its Significant Subsidiaries has good title to, or valid license or leasehold interests in, all its real and personal property
material to its business, subject only to Liens and minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties for their intended purposes.
(b) Intellectual Property. XL Group and
each of its Significant Subsidiaries owns, or is licensed to use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its Subsidiaries does not infringe upon the rights of
any other Person, except for any such infringements that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental
Matters.
(a) Actions, Suits and Proceedings. Except
as disclosed in Schedule II or as routinely encountered in claims activity, there are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority now pending against or, to the knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries (i) as to which an adverse determination that would, individually or in the aggregate,
result in a Material Adverse Effect is likely or (ii) that involve this Agreement or the Transactions.
(b) Environmental Matters. Except as disclosed
in Schedule III and except with respect to any other matters that, individually or in the aggregate, would not be likely to result
in a Material Adverse Effect, neither the Company nor any of its Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval required for its business under any Environmental
Law, (ii) has incurred any Environmental Liability, (iii) has received notice of any claim with respect to any Environmental
Liability or (iv) knows of any basis for any Environmental Liability.
Schedules II and III referred to in this Section
4.06 shall be deemed automatically updated from time to time to include disclosures included in filings made by XL Group with the
SEC pursuant to the Exchange Act, after the Effective Date, it being understood, however, that any such updates shall not affect
or limit in any manner any of the obligations of the Company under this Agreement in effect immediately prior to such disclosure.
SECTION 4.07. Compliance with Laws and Agreements. The Company and each of its Subsidiaries is in compliance with
all laws, regulations and orders of any Governmental Authority applicable to it or its property and all indentures, agreements
and other instruments binding upon it or its property, except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 4.08. Investment Company Status. The Company is not an “investment company” as defined
in, or subject to regulation under, the Investment Company Act of 1940.
SECTION 4.09. Taxes. The Company and each of its Subsidiaries has timely filed or caused
to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have
been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Person
has set aside on its books adequate reserves or (b) to the extent that the failure to file any such Tax return or pay any
such Taxes could not reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. 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, could reasonably
be expected to result in a Material Adverse Effect. The present value of all accumulated benefit obligations under each Plan (based
on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of the assets of such Plan by an amount that
could reasonably be expected to result in a Material Adverse Effect.
Except as could not reasonably be expected to
result in a Material Adverse Effect, (i) all contributions required to be made by the Company or any of their Subsidiaries with
respect to a Non-U.S. Benefit Plan have been timely made, (ii) each Non-U.S. Benefit Plan has been maintained in compliance with
its terms and with the requirements of any and all applicable laws and has been maintained, where required, in good standing with
the applicable Governmental Authority and (iii) neither the Company nor any of their Subsidiaries has incurred any obligation in
connection with the termination or withdrawal from any Non-U.S. Benefit Plan.
SECTION 4.11. Disclosure. As of the date hereof, each of the annual and quarterly reports
required to be filed by XL Group under Section 13(a) of the Exchange Act after December 31, 2012 has been filed and, as of the
respective dates thereof and as of the date hereof, such reports (as they may have been supplemented or revised by any subsequent
report), taken as a whole, (a) did not contain and do not contain an untrue statement of a material fact with respect to XL Group
and did not omit and do not omit to state a material fact with respect to XL Group necessary in order to make the statements therein
with respect to XL Group, in the light of the circumstances under which they were made, not misleading, (b) did not contain and
do not contain an untrue statement of a material fact with respect to the Company and did not omit and do not omit to state a material
fact with respect to the Company necessary in order to make the statements therein with respect to the Company, in the light of
the circumstances under which they were made, not misleading and (c) disclose all material information that the Company would be
required to disclose in filings under Section 13(a) of the Exchange Act if the Company was required to file such periodic reports
with the Commission.
SECTION 4.12. Use of Credit. Neither the Company nor any of its Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose, whether immediate, incidental or ultimate,
of buying or carrying Margin Stock, no Letter of Credit will be used in connection with buying or carrying any Margin Stock, and
no part of the proceeds of any Loan hereunder will be used to buy or carry any Margin Stock (except, in each case, for repurchases
of the capital stock of the Company and purchases of Margin Stock in accordance with the Company’s Statement of Investment
Policy Objectives and Guidelines as in effect on the date hereof or as it may be changed from time to time by a resolution duly
adopted by the board of directors of the Company (or any committee thereof)). The purchase of any Margin Stock with the proceeds
of any Loan will not be in violation of Regulation U or X of the Board and, after applying the proceeds of such Loan, not more
than 25 percent of the value of the assets of the Company and its Subsidiaries taken as a whole consists or will consist of Margin
Stock.
SECTION 4.14. Withholding Taxes. Based upon information with respect to each Lender provided by
each Lender to the Administrative Agent, as of the date hereof, the payment of the LC Disbursements and interest thereon, principal
of and interest on the Loans, the fees under Section 2.14 and all other amounts payable hereunder will not be subject, by withholding
or deduction, to any Indemnified Taxes imposed by the Cayman Islands.
SECTION 4.15. Stamp Taxes. To ensure the legality, validity, enforceability or admissibility
in evidence of this Agreement or any promissory notes evidencing Loans made (or to be made), it is not necessary, as of the date
hereof, that this Agreement or such promissory notes or any other document be filed or recorded with any Governmental Authority
in the Cayman Islands, or that any stamp or similar tax be paid on or in respect of this Agreement in any such jurisdiction, or
such promissory notes or any other document other than such filings and recordations that have already been made and such stamp
or similar taxes that have been paid; provided, that this Agreement and any such promissory notes are not executed in or
subsequently brought into the Cayman Islands.
SECTION 4.16. Legal Form. Each of this Agreement and any promissory notes evidencing Loans
made (or to be made) is in proper legal form as of the date hereof under the laws of the Cayman Islands for the admissibility thereof
in the courts of the Cayman Islands.
ARTICLE V
CONDITIONS
SECTION 5.01. Effective Date. The obligations of the Lenders (or the Issuing Lender, as the
case may be) to issue Letters of Credit and/or to make Loans hereunder initially are subject to the receipt by the Administrative
Agent of each of the following documents, each of which shall be satisfactory to the Administrative Agent (and to the extent specified
below, to each Lender) in form and substance (or such condition shall have been waived in accordance with Section 10.02):
(a) Executed Counterparts. From
each party hereto either (x) a counterpart of this Agreement signed on behalf of such party or (y) written evidence satisfactory
to the Administrative Agent (which may include telecopy or email transmission of a signed
signature page to this Agreement) that such party has
signed a counterpart of this Agreement.
(b) Opinions of Counsel to the
Company. Opinions, each dated the Effective Date, of Cleary Gottlieb Steen & Hamilton LLP, special U.S. counsel for the
Company and opinions provided by counsel to the Company in the jurisdiction of the Cayman Islands, in each case, reasonably satisfactory
to the Administrative Agent and its counsel.
(c) Corporate Documents.
Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the organization,
existence and good standing, if applicable, of the Company, the authorization of the Transactions and any other legal matters relating
to the Company, this Agreement or the Transactions, all in form and substance reasonably satisfactory to the Administrative Agent
and its counsel.
(d) Company’s Certificate.
A Company Certificate, dated the Effective Date, confirming compliance with the conditions set forth in clauses (a) and (b) of
the first sentence of Section 5.02.
(e) Other Documents. Such
other documents as the Administrative Agent or any Lender or special New York counsel to the Administrative Agent may reasonably
request.
The obligation of any Lender to make its
initial extension of credit or initial issuance of a Letter of Credit hereunder is also subject to the payment by the Company of
such fees as the Company shall have agreed to pay to any Lender or the Administrative Agent in connection herewith, including the
reasonable fees and expenses of King & Spalding LLP, special New York counsel to the Administrative Agent, in connection with
the negotiation, preparation, execution and delivery of this Agreement and the other Credit Documents and the extensions of credit
hereunder (to the extent that reasonably detailed statements for such fees and expenses have been delivered to the Company).
The Administrative Agent shall notify the
Company and the Lenders of the Effective Date, and such notice shall be conclusive and binding.
SECTION 5.02. Each Credit Event.
The obligation of each Lender to issue, continue, amend, renew or extend any Letter of Credit or to make any Loan at any time
is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties
of the Company set forth in this Agreement (other than, at any time after the Effective Date, in Section 4.04(b)) shall be true
and correct on and as of the date of issuance, continuation, amendment, renewal or extension of such Letter of Credit or the date
of the making of such Loan, as applicable (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, as of such specific date); and
(b) at the time of and immediately
after giving effect to the issuance, amendment, renewal or extension of such Letter of Credit or the making of such Loan, as applicable,
no Default shall have occurred and be continuing.
Each issuance, continuation, amendment, renewal or extension
of a Letter of Credit and each borrowing of a Loan shall be deemed to constitute a representation and warranty by the Company on
the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence.
ARTICLE VI
COVENANTS
Until the Commitments have expired or been
terminated, the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, all Letters
of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Company covenants and agrees
with the Lenders that:
SECTION 6.01 Reporting
(a) The Company shall file with the
Administrative Agent (for distribution to the Lenders), within 15 days after the Company is required to file the same with the
SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the
foregoing as the SEC may from time to time by rules and regulations prescribe) which the Company may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act (provided that availability of such reports on a website
maintained by the SEC shall be deemed to fulfill this requirement); or, if the Company is not required to file information, documents
or reports pursuant to either of said sections, then it shall file with the Administrative Agent and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and regulations; and
(b) The Company shall file with the
Administrative Agent and the SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Agreement
as may be required from time to time by such rules and regulations.
The reports, information and other documents
required to be filed and furnished pursuant to this Section 6.01 may, at the option of the Company, be filed by and be those of
XL Group rather than the Company.
Delivery of such reports, information and
documents to the Administrative Agent is for informational purposes only and the Administrative Agent’s receipt of such shall
not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Administrative Agent is entitled to rely exclusively on Company
Certificates).
SECTION 6.02
Reserved.
SECTION 6.03 Corporate
Existence.
(a) Subject to Section 6.03(b), the Company
will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights
(charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any
such right or franchise if the board of directors of the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Lenders.
(b) The Company shall not (1) consolidate
with or merge with or into any other Person (other than XL Group) or convey, transfer, sell or lease its properties and assets
substantially as an entirety to any Person (other than XL Group), (2) permit any Person (other than XL Group) to consolidate with
or merge into the Company, or (3) permit any Person (other than XL Group) to convey, transfer, sell or lease that Person’s
properties and assets substantially as an entirety to the Company, unless:
(i) in the case of (1) and (2) above,
either (x) the Company shall be the surviving person or (y) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety is an entity organized and existing under the laws of the United States of America (including
any State thereof or the District of Columbia), the United Kingdom, Ireland, the Cayman Islands, Bermuda or any country which is
a member of the Organisation for Economic Co-operation and Development or the European Union and shall expressly assume pursuant
to documentation in form reasonably satisfactory to the Administrative Agent, all of the obligations of the Company under this
Agreement, the Letter of Credit and the other Credit Documents;
(ii) immediately after giving effect
to such transaction, no Default and no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered
to the Administrative Agent a Company Certificate certifying that such consolidation, merger, conveyance, transfer, sale or lease
comply with this Section 6.03(b) and that all conditions precedent herein provided for relating to such transaction have been satisfied.
The successor Person formed by such consolidation
or into which the Company is merged or the successor Person to which such conveyance, transfer, sale or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the Company under this Agreement with the same effect as
if such successor had been named as the Company herein; and thereafter, the Company shall be discharged from all obligations and
covenants under this Agreement.
SECTION 6.04 Maintenance
of Properties.
The Company will use its reasonable efforts
to cause all material properties used or useful in the conduct of its business to be maintained and kept in good condition, repair
and working order
(subject to wear and tear) and supplied with all necessary material equipment and will use its reasonable efforts
to cause to be made all necessary material repairs, renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section 6.04 shall prevent the Company from discontinuing
the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in
the conduct of its business and not disadvantageous in any material respect to the Lenders.
SECTION 6.05 Statement
by the Company as to Default.
The Company will deliver to the Administrative
Agent, within 120 days after the end of each fiscal year of the Company ending after the date hereof, a Company Certificate stating
whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Agreement or any other Credit Document, and if the Company shall be in Default,
specifying all such Defaults and the nature and status thereof of which they may have knowledge.
SECTION 6.06 Limitation
on Liens on Stock of Designated Subsidiaries.
The Company covenants that, so long as
any obligations under this Agreement are outstanding (other than contingent indemnification obligations for which no claim shall
have been made), the Company will not, nor will the Company permit any Designated Subsidiary to, create, assume, incur, guarantee
or otherwise permit to exist any indebtedness evidenced by notes, debentures, bonds or similar instruments, which is secured by
any mortgage, pledge, lien, security interest or other encumbrance upon any shares of Capital Stock of any Designated Subsidiary
(whether such shares of stock are now owned or hereafter acquired) without effectively providing concurrently that the obligations
under this Agreement will be secured equally and ratably with such indebtedness for at least the time period such other indebtedness
is so secured.
SECTION 6.07 Waiver of Certain
Covenants.
The Company may omit in any particular
instance to comply with any term, provision or condition set forth in this Article VI if, before or after the time for such compliance,
the Required Lenders shall either waive such compliance in such instance or generally waive compliance with such term, provision
or condition; except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company
shall remain in full force and effect.
ARTICLE VII
RESERVED
ARTICLE VIII
EVENTS OF DEFAULT
If any of the following events (“Events
of Default”) shall occur:
(a) a default by the Company
in the payment when due of interest on any Loan, fees payable under this Agreement or any other amount (other than principal) due
hereunder, which default continues for a period of 60 days;
(b) a default by the Company
in the payment when due of principal of any Loan on the maturity date thereof;
(c) default in the performance,
or breach, of any material covenant or warranty of the Company in this Agreement (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Article VIII specifically dealt with) and continuance of such for a period
of 60 days after there has been given, by registered or certified mail, to the Company by the Administrative Agent, or to the Company
and the Administrative Agent by the Required Lenders, a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a “Notice of Default” hereunder;
(d) default by the Company under
any instrument or instruments under which there is or may be secured or evidenced any of the Company’s indebtedness (other
than any obligations under this Agreement) having an outstanding principal amount of $50,000,000 (or its equivalent in any other
currency or currencies) or more, individually or in the aggregate, that has caused the holders thereof to declare such indebtedness
to be due and payable prior to its stated maturity, unless such declaration has been rescinded within 30 days;
(e) default by the Company in
the payment when due of the principal of or premium, if any, on any bond, debenture, note or other evidence of the Company’s
indebtedness, in each case for money borrowed, or in the payment of principal or premium, if any, under any mortgage, indenture,
agreement or instrument under which there may be issued or by which there may be secured or evidenced any indebtedness of the Company
for money borrowed, which default for payment of principal or premium, if any, is in an aggregate principal amount exceeding $50,000,000
(or its equivalent in any other currency or currencies), if such default shall continue unremedied or unwaived for more than 30
days after the expiration of any grace period or extension of the time for payment applicable thereto;
(f) the entry by a court having
jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company
as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
(g) the commencement by the Company
of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief
in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition
or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company of any substantial part of its property, or the making by it of an assignment for the benefit of creditors,
or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to have a
case commenced against it or to seek an order for relief under any applicable bankruptcy, insolvency or other similar law or the
taking of corporate action by the Company in furtherance of any such action.
then, and in every such event (other than an event described
in clause (f) or (g) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the Company, take either or both of the following actions,
at the same or different times:
(i) declare the commitment of the Administrative
Agent and each Issuing Lender to issue, amend, extend or otherwise modify any Letter of Credit to be terminated, whereupon such
commitments and obligation shall be terminated;
(ii) declare the Loans then outstanding to
be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Company accrued hereunder, shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company;
and in case of any event with respect to
any the Company described in clause (f) or (g) of this Article, the Commitments shall automatically terminate and the principal
of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the
Company accrued hereunder, shall automatically become due and
payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Company.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Each of the Lenders and the Issuing Lender
hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof and under the other
Credit Documents together with such actions and powers as are reasonably incidental thereto.
The Person serving as the Administrative
Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same
as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative
Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing,
(b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing
by the Required Lenders, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to the Company or any of their Subsidiaries that
is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative
Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or
in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge
of any Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered
hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement,
instrument or document, or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled
to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made
by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any
and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative
Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and
to the Related Parties of the Administrative Agent and any such sub-agent.
The Administrative Agent may resign at any
time by notifying the Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation
with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent’s resignation shall nonetheless become effective and (1) the retiring Administrative Agent shall be discharged from
its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all
payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each
Lender directly) until such time as the Required Lenders appoint a successor agent as provided for above in this paragraph. Upon
the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become
vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the Administrative Agent’s resignation hereunder, the
provisions of this Article and Section 10.03 shall continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently
and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Except
in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered
mail or sent by telecopy or email, as follows:
(a) if to the Company, to XLIT
LTD., c/o XL Group plc, One Bermudiana Road, Hamilton HM 08 Bermuda, Attention of Timothy Goodyer (email address Timothy.Goodyer@xlgroup.com);
with a copy to Kirstin R. Gould, Esq. at the same address and email address Kirstin.Gould@xlgroup.com;
(b) if to the Administrative
Agent, to Two Penns Way, Suite 110, New Castle, Delaware 19720, Telephone: (302) 894-6109, Telecopy: (212) 994-0847, Email: dennis1.banfield@citigroup.com,
Attention: Dennis Banfield;
with a copy to
Citi Global Banking, Financial Institutions
Group, 388 Greenwich Street, New York, NY 10013, Email: john.modin@citi.com, Attention: John Modin; and
(c) if to a Lender, to it at
its address (or telecopy number or email address) set forth in its Administrative Questionnaire (a copy of which such Administrative
Questionnaire shall be delivered to the Company).
Any party hereto may change its address, telecopy number or
email address for notices and other communications hereunder by notice to the other parties hereto (or, in the case of any such
change by a Lender, by notice to the Company and the Administrative Agent). All notices and other communications given to any party
hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communications pursuant to procedures approved by the Administrative
Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative
Agent and the applicable Lender. The Administrative Agent or the Company may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval
of such procedures may be limited to particular notices or communications. Without limiting the foregoing, the Company may furnish
to the Administrative Agent and the Lenders the information, documents and other reports required to be furnished by it pursuant
to Section 6.01 by electronic communications pursuant to procedures approved by the Administrative Agent.
SECTION 10.02. Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative.
No failure or delay by the Administrative Agent, the Issuing Lender or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance
of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or
power. The rights and remedies of the Administrative Agent, the Issuing Lender and the Lenders hereunder are cumulative and are
not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent
to any departure by the Company therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of
this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, the Issuing Lender or any Lender may have had notice
or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement
nor any provision hereof may be waived, amended or modified except in writing signed by the Company and the Required Lenders or
by the Company and the Administrative Agent with the consent of the Required Lenders (or in the case of an Amendment of Schedule
I signed by the Company, the Lender whose Commitment is being increased and the Issuing Lender); provided that no such writing
shall:
(i) increase the Commitment of any
Lender without the written consent of such Lender,
(ii) reduce the principal amount
of any Loan or the amount of any reimbursement obligation of the Company in respect of any LC Disbursement or reduce the rate of
interest thereon, or reduce any fees or other amounts payable hereunder, without the written consent of each Lender directly affected
thereby,
(iii) postpone the scheduled date
of payment of the principal amount of any Loan or for reimbursement of any LC Disbursement, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment or any Letter of Credit (other than an extension thereof pursuant to an “evergreen” provision” to
the extent permitted hereunder), without the written consent of each Lender directly affected thereby,
(iv) change Section 2.20(c) or 2.20(d)
without the consent of each Lender directly affected thereby, and
(vi) change any of the provisions
of this Section or the percentage in the definition of the term “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination
or grant any consent hereunder, without the written consent of each Lender;
and provided further that no such writing shall
amend, modify or otherwise affect the rights or duties of the Administrative Agent or an Issuing Lender hereunder without the prior
written consent of the Administrative Agent or such Issuing Lender, as applicable.
SECTION 10.03. Expenses; Indemnity;
Damage Waiver.
(a) Costs and Expenses. The Company
agrees to pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the preparation and administration
of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Lender or any Lender, including the fees, charges and disbursements of one legal counsel for the Administrative Agent and
one legal counsel for the Lenders and, if necessary, one firm of local counsel in each appropriate jurisdiction outside of the
United States, in connection with the enforcement or protection of its rights in connection with this Agreement, including its
rights under this Section, or in connection with the Loans made or Letters of Credit issued hereunder, including in connection
with any workout, restructuring or negotiations in respect thereof.
(b) Indemnification by the Company.
The Company agrees to indemnify the Administrative Agent, the Issuing Lender and each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an “Indemnitee”) against, and to hold each Indemnitee harmless
from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any
counsel for any Indemnitee (but not including Excluded Taxes), incurred by or asserted against any Indemnitee arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions
or any other transactions contemplated hereby, (ii) any Loan or the use of the proceeds thereof or any Letter of Credit or the
use thereof (including any refusal by any Lender to honor a demand for payment under a Letter of Credit if the documents presented
in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries, (iv) the representation in Section 4.11 being incorrect
when made or deemed made by the Company, or (v) any actual or prospective claim, litigation, investigation or proceeding relating
to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party
thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses result from or arise out of the gross negligence or willful misconduct of such Indemnitee,
in each case, as determined in a final non-appealable judgment by a court of competent jurisdiction.
(c) Reimbursement by Lenders. To the
extent that the Company fails to pay any amount required to be paid by them to the Administrative Agent or Issuing Lender under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc.
To the extent permitted by applicable law, the Company shall not assert, and the Company hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) Payments. All amounts due under
this Section shall be payable promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) Assignments Generally. The provisions
of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that (i) the Company may not assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Lender (and any attempted assignment or transfer by the Company without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders)
any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. (i) Subject
to the conditions set forth in paragraph (b)(ii) of this Section, any Lender may assign all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment and the Loans and LC Disbursements at the time owing to it)
to one or more NAIC Approved Banks (or to any other Person whose obligations in respect of Letters of Credit shall be confirmed
by a NAIC Approved Bank) with the prior written consent (such consent not to be unreasonably withheld) of:
(A) the Company, provided
that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender or, if an Event of Default
under clause (a), (b), (f) or (g) of Article VIII has occurred and is continuing, any other assignee; and provided further
that the Company shall be deemed to have consented to any such assignment unless the Company shall object thereto by written notice
to the Administrative Agent within 10 Business Days after having received a written request for
such consent;
(B) the Administrative Agent, provided
that no consent of the Administrative Agent shall be required for an assignment to a Lender or an Affiliate of a Lender; and
(C) the Issuing Lender with respect
to Participated Letters of Credit.
(ii) Assignments shall be subject to the
following additional conditions:
(A) except in the case of an assignment
to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment,
the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment
and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $5,000,000 unless
each of the Company and the Administrative Agent otherwise consent, provided that no such consent of the Company shall be
required if an Event of Default under clause (a), (b), (f) or (g) of Article VIII has occurred and is continuing;
(B) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
(C) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation
fee of $3,500; and
(D) the assignee, if it shall not
be a Lender, shall deliver an Administrative Questionnaire to the Administrative Agent (with a copy to the Company).
(iii) Subject to acceptance and recording
thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption,
have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of
an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the benefits and subject to the limitations of Sections 2.17,
2.18, 2.19 and 10.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply
with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights
and obligations in accordance with paragraph (c) of this Section.
(iv) Reserved.
(v) The Administrative Agent, acting for
this purpose as an agent of the Company, shall maintain at one of its offices in New York City a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and addresses of the Lenders, the Commitment of, and principal
amount of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, absent manifest error, and the Company, the Administrative Agent and the Lenders
shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any
Lender, at any reasonable time and from time to time upon reasonable prior notice.
(vi) Upon its receipt of a duly completed
Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire
(unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b)(ii)(C)
of this Section and any written consent to such assignment required by paragraph (b)(i) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained therein in the Register. No assignment shall be
effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) Participations. (i) Any Lender
may, without the consent of the Company, the Administrative Agent or any Issuing Lender, sell participations to one or more banks
or other entities (a “Participant”) in all or a portion of such Lender’s rights and obligations under
this Agreement and the other Credit Documents (including all or a portion of its Commitment, the Loans and the LC Disbursements
owing to it); provided that (A) any such participation sold to a Participant which is not a Lender or a Federal Reserve
Bank shall be made only with the consent (which in each case shall not be unreasonably withheld) of the Company and the Administrative
Agent, unless a Default has occurred and is continuing, in which case the consent of the Company shall not be required, (B) such
Lender’s obligations under this Agreement and the other Credit Documents shall remain unchanged, (C) such Lender shall remain
solely responsible to the other parties hereto for the performance of such obligations and (D) the Company, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Agreement and the other Credit Documents. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and the other Credit
Documents and to approve any amendment, modification or waiver of any provision of this Agreement or the other Credit Documents;
provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to Section 10.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Company agrees that each Participant shall be entitled to the benefits and subject
to the limitations of Sections 2.17 and 2.19 (subject to the requirements of such Sections) to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees
to be subject to Section 2.20(d) as though it were a Lender.
(ii) A Participant shall not be entitled
to receive any greater payment under Section 2.17, 2.18 or 2.19 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant or the Lender interest assigned, unless (A) the sale of the participation
to such Participant is made with the Company’s prior written consent and (B) in the case of Section 2.17 or 2.19, the entitlement
to greater payment results solely from a Change in Law formally announced after such Participant became a Participant.
(iii) In the event that any Lender sells
participations in a Loan or Commitment, such Lender, acting solely for this purpose as a non-fiduciary agent of the the Company,
shall maintain a register on which it enters the name of all participants in the Loans and Commitments held by it (the “Participant
Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant
Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest
in any Commitments, Letters of Credit or its other obligations under this Agreement or any Credit Document) except to the extent
that such disclosure is necessary to establish that such Commitment, Letter of Credit or other obligation is in registered form
under Section 5f.103-1(c) of the United States Treasury Regulations or otherwise required by applicable law. The entries in the
Participant Register shall be conclusive in the absence of manifest error, and the participating Lender, the Company and the Administrative
Agent shall treat each Person whose name is recorded in the Participant Register, pursuant to the terms hereof, as the Participant
for all purposes of this Agreement and the other Credit Documents, notwithstanding any notice to the contrary.
(d) Certain Pledges. Any Lender may
at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any such pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall
not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(e) No Assignments to the Company or Affiliates.
Anything in this Section to the contrary notwithstanding, no Lender may assign or participate any interest in any Loan or LC Exposure
held by it hereunder to the Company or any of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 10.05. Survival.
All covenants, agreements, representations and warranties made by the Company herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans 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 the Administrative Agent, or any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long
as the principal of, or any accrued interest on, any Loan or any fee or any other amount payable under this Agreement 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 2.17, 2.18, 2.19 and 10.03 and Article IX shall survive
and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the expiration or termination of the Commitments or the termination
of this Agreement or any provision hereof.
SECTION 10.06. Counterparts; Integration;
Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract between
and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral
or written, relating to the subject matter hereof. Except as provided in Section 5.01, this Agreement shall become effective when
it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof
which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature
page to this Agreement by telecopy or email shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability.
To the fullest extent permitted by law, any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 10.08. Right of Setoff.
If an Event of Default shall have occurred and be continuing, each Lender and their Affiliates (collectively, solely for purposes
of this paragraph, the “Lenders”) are hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender to or for the credit or the account of the Company against any of
and all the obligations of the Company now or hereafter existing under this Agreement held by such Lender, irrespective of whether
or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 10.09. Governing Law; Jurisdiction;
Etc.
(a) Governing Law. This Agreement shall
be construed in accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each
party hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the
Supreme Court of the State of New York sitting in the Borough of Manhattan in the City of New York and of the United States District
Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of
or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent, the Issuing Lender
or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against the Company or its properties
in the courts of any jurisdiction.
(c) Waiver of Venue. Each party hereto
hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Service of Process. By the execution
and delivery of this Agreement, the Company acknowledges that it has by a separate written instrument, designated and appointed
CT Corporation System, 111 Eighth Avenue, 13th floor, New York, New York 10011 (or any successor entity thereto), as
its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Agreement that
may be instituted in any federal or state court in the State of New York. Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing in this Agreement will affect the right of any
party to this Agreement to serve process in any other manner permitted by law.
(e) Waiver of Immunities. To the extent
that the Company has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution or execution, on the ground of sovereignty or otherwise)
with respect to itself or its property, it hereby irrevocably waives, to the fullest extent permitted by applicable law, such immunity
in respect of its obligations under this Agreement.
SECTION 10.10. WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 10.11. Headings. Article
and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 10.12. Treatment of Certain
Information; Confidentiality.
(a) Treatment of Certain Information.
The Company acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided
to the Company or one or more of their Subsidiaries (in connection with this Agreement or otherwise) by any Lender or by one or
more subsidiaries or affiliates of such Lender and the Company hereby authorizes each Lender to share any information delivered
to such Lender by the Company and its Subsidiaries pursuant to this Agreement, or in connection with the decision of such Lender
to enter into this Agreement, to any such subsidiary or affiliate, it being understood that (i) any such information shall be used
only for the purpose of advising the Company or preparing presentation materials for the benefit of the Company and (ii) any such
subsidiary or affiliate receiving such information shall be bound by the provisions of paragraph (b) of this Section as if it were
a Lender hereunder. The provisions of this paragraph and paragraph (b) of this Section shall survive until the third anniversary
of the later of (i) the expiration or termination of the Commitments hereunder and (ii) the termination of this Agreement.
(b) Confidentiality. Each of the Administrative
Agent, the Issuing Lender and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees, partners and agents, including
accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to keep such Information confidential), (ii) to the extent requested
by any regulatory authority (including self-regulating organizations) having jurisdiction over the Administrative Agent or any
Lender (or any Affiliate thereof), (iii) to the extent required by applicable laws or regulations or by any subpoena or similar
legal process, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement in writing
containing provisions substantially the same as those of this paragraph and for the benefit of the Company, to (a) any assignee
of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement,
(b) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and
its obligations hereunder or (c) any credit insurance provider (or its advisors) in relation to this Agreement, (vii) with the
consent of the Company or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach
of this paragraph or (B) becomes available to the Administrative Agent, the Issuing Lender or any Lender on a nonconfidential basis
from a source other than the Company. For the purposes of this paragraph, “Information” means all information
received from the Company relating to the Company or its business, other than any such information that is available to the Administrative
Agent, the Issuing Lender or any Lender on a nonconfidential basis prior to disclosure by the Company. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord to its own confidential
information. Notwithstanding the foregoing, each of the Administrative Agent, and the Lenders agree that they will not trade the
securities of the Company based upon non-public Information that is received by them.
SECTION 10.13. Judgment Currency.
This is an international loan transaction in which the obligations of the Company under this Agreement to make payment hereunder
shall be satisfied only in Dollars and only if such payment shall be made in New York City, and the obligations of the Company
under this Agreement to make payment to (or for account of) a Lender in Dollars shall not be discharged or satisfied by any tender
or recovery pursuant to any judgment expressed in or converted into any other currency or in another place except to the extent
that such tender or recovery results in the effective receipt by such Lender in New York City of the full amount of Dollars payable
to such Lender under this Agreement. If for the purpose of obtaining judgment in any court it is necessary to convert a sum due
hereunder in Dollars into another currency (in this Section called the “judgment currency”), the rate of exchange
that shall be applied shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase
such Dollars at the principal office of the Administrative Agent in New York City with the judgment currency on the Business Day
next preceding the day on which such judgment is rendered. The obligation of the Company in respect of any such sum due from it
to the Administrative Agent or any Lender hereunder (in this Section called an “Entitled Person”) shall, notwithstanding
the rate of exchange actually applied in rendering such judgment, be discharged only to the extent that on the Business Day following
receipt by such Entitled Person of any sum adjudged to be due hereunder in the judgment currency such Entitled Person may in accordance
with normal banking procedures purchase and transfer Dollars to New York City with the amount of the judgment currency so adjudged
to be due; and the Company, as a separate obligation and notwithstanding any such judgment, agrees to indemnify such Entitled Person
against, and to pay such Entitled Person on demand, in Dollars, the amount (if any) by which the sum originally due to such Entitled
Person in Dollars hereunder exceeds the amount of the Dollars so purchased and transferred.
SECTION 10.14. USA PATRIOT Act.
Each Lender and the Administrative Agent hereby notifies the Company that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)), such Lender and the Administrative Agent is required to obtain, verify
and record information that identifies the Company, which information includes the name and address of the Company and other information
that will allow such Lender and the Administrative Agent to identify the Company in accordance with said Act. The Company and each
of its Subsidiaries shall provide such information and take such actions as are reasonably requested by the Administrative Agent
or any Lender in order to assist the Administrative Agent and the Lenders in maintaining compliance with the USA Patriot Act.
SECTION 10.15. NO FIDUCIARY DUTY.
The Administrative Agent, each Lender and their Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”),
may have economic interests that conflict with those of the Company, its stockholders and/or its affiliates. The Company agrees
that nothing in the Credit Documents or otherwise pursuant to the Transactions will be deemed to create a fiduciary relationship
or fiduciary or other implied
duty between any Lender, on the one hand, and the Company, its
stockholders or its affiliates, on the other. The Company acknowledges and agrees that (i) the transactions contemplated by the
Credit Documents are arm’s-length commercial transactions between the Lenders, on the one hand, and the Company, on the other,
and (ii) in connection therewith and with the process leading thereto, (x) no Lender has assumed a fiduciary responsibility in
favor of the Company its stockholders or its affiliates with respect to the transactions contemplated hereby or the process leading
thereto (irrespective of whether any Lender has advised, is currently advising or will advise the Company, its stockholders or
its Affiliates on other matters) or any other obligation to the Company except the obligations expressly set forth in the Credit
Documents and (y) each Lender is acting solely as principal and not as the fiduciary of the Company, its management, stockholders,
creditors or any other Person. The Company acknowledges and agrees that it has consulted its own legal and financial advisors to
the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions
and the process leading thereto. The Company agrees that it will not claim that any Lender owes a fiduciary or similar duty to
the Company, in connection with such transaction or the process leading thereto.
SECTION 10.16. ILLEGALITY.
Notwithstanding anything herein to the contrary,
no Lender shall be required to make any Loan or issue or fund any Letter of Credit for so long as such action is illegal and any
such Lender shall provide prompt written notice setting forth any such illegality pursuant to this Section 10.16 to the Company.
For the purposes of this Section 10.16, the provisions of Section 2.21(a) shall apply in the event of any such illegality mutatis
mutandis.
IN WITNESS WHEREOF, this Agreement has been
duly executed as of the day and year first above written.
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XLIT LTD., |
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as the Company |
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By: |
/s/ Simon Rich |
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Name: Simon Rich |
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Title: Director |
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CITICORP USA, INC., |
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as Administrative Agent and as Issuing Lender |
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By: |
/s/ Andrew Kreeger |
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Name: Andrew Kreeger |
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Title: Director and Vice President |
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CITIBANK, N.A., |
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as a Lender |
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By: |
/s/ Richard Rivera |
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Name: Richard Rivera |
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Title: Vice President |
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SCHEDULE I
Commitments
| Name of Lender | |
Commitment ($) | |
| | |
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| Citibank, N.A. |
|
$100,000,000.00 |
|
SCHEDULE II
Litigation
None.
SCHEDULE III
Environmental Matters
None.
EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION
This Assignment and
Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered
into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the
“Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit
Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged
by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein
by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration,
the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from
the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective
Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity
as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related
to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under
the Credit Agreement identified below (including any letters of credit included in such facility) and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents
or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of
the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned
pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such
sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
| 1. |
Assignor: |
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| 2. |
Assignee: |
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[and is an Affiliate of [identify
Lender]1 [and is a NAIC Approved Bank]2
] |
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| 3. |
Company: |
XLIT Ltd. |
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| 4. |
Administrative Agent: |
Citicorp USA, Inc., as the administrative agent under the Credit Agreement |
1 Select as applicable.
2 Insert to the extent required by Section 10.04(b)
of the Credit Agreement.
| 5. |
Credit Agreement: |
Credit Agreement dated as of August 6, 2013 (as amended and in effect from time to time, the “Credit Agreement”), between XLIT Ltd., Citicorp USA, Inc., as Administrative Agent and Issuing Lender, and the other Lenders party thereto |
Aggregate Amount of
Commitment/Loans
for all Lenders |
|
Amount of
Commitment/Loan
Assigned |
|
Percentage Assigned
of
Commitment/Loans 3 |
| $ |
|
$ |
|
% |
| $ |
|
$ |
|
% |
| $ |
|
$ |
|
% |
Effective Date: _____________ ___, 20___
[TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby
agreed to:
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ASSIGNOR |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
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3 Set forth, to at least 9 decimals, as a percentage
of the Commitment of all Lenders thereunder.
| Consented to and Accepted: |
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| CITICORP USA, INC., |
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| as Administrative Agent |
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| By |
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Title: |
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ANNEX 1
CREDIT AGREEMENT DATED AS OF AUGUST 6, 2013,
BETWEEN XLIT LTD., CITICORP
USA, INC., AS ADMINISTRATIVE AGENT AND ISSUING LENDER, AND THE OTHER
LENDERS PARTY THERETO
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor.
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken
all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby;
and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with
the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Documents, (iii) the financial condition of XLIT Ltd. or (iv) the performance or observance by XLIT Ltd.
of any of its obligations under any Credit Document.
1.2.
Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary,
to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender
under the Credit Agreement, (ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to
be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it
shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the
most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to
purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) 4attached to the Assignment and Assumption is any documentation
required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and
(b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender,
and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the
obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.
4 Both U.S.
Lenders and Non-U.S. Lenders have to provide forms under Section 2.19(f).
2. Payments.
From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including
payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective
Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3. General Provisions.
This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors
and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective
as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
EXHIBIT B
FORM OF BORROWING REQUEST
[Date]
Two Penns Way, Suite 110
New Castle, Delaware 19720
Telecopy: (212) 994-0847
Email: dennis1.banfield@citigroup.com
Attention: Dennis Banfield
XLIT LTD.
Ladies and Gentlemen:
Pursuant to Section 2.08 of that certain
Credit Agreement, dated as of August 6, 2013 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms used but not defined herein having the meanings given such terms in the Credit Agreement),
between XLIT Ltd., an exempted company incorporated in the Cayman Islands with limited liability (“XLIT”), Citicorp
USA, Inc., as Administrative Agent and Issuing Lender, and the other Lenders party thereto, the undersigned hereby requests a Borrowing
under the Credit Agreement, and in that connection sets forth below the information relating to such Borrowing:
1. The Date of Borrowing (which is a Business
Day) is [___________ _____, _____] (the “Borrowing Date”).
2. The aggregate amount of the proposed
Borrowing is $[____________________].
3. The type of Borrowing is [an ABR Borrowing]
[a Eurodollar Borrowing].
[4. The initial Interest Period for each
Eurodollar Borrowing made as part of the proposed Loan is ___ month[s].]
[4][5]. The location and number of XLIT’s
account to which the funds requested pursuant to this Borrowing Request are to be disbursed is [ ].
The undersigned hereby represents and warrants
that the conditions specified in Section 5.02 of the Credit Agreement have been satisfied as of the Borrowing Date.
The above request has been made to the Administrative
Agent by telephone at (302) 894-6109.
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Very truly yours, |
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XLIT LTD. |
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By: |
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Name: |
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Title: |
EXHIBIT C
FORM OF INTEREST ELECTION REQUEST
[ ], 201[ ]
XLIT Ltd., an exempted company incorporated in the Cayman Islands
with limited liability (“XLIT”), pursuant to Section 2.10 of the Credit Agreement dated as of August 6, 2013 (together
with all amendments, restatements, supplements or other modifications thereto, the “Credit Agreement”) between
XLIT, Citicorp USA, Inc., as Administrative Agent and Issuing Lender, and the other Lenders as party thereto (unless otherwise
defined herein, each capitalized term used herein is defined in the Credit Agreement), hereby makes an Interest Election Request
as follows:
(i) The Borrowing to which this Interest Election Request applies
is [ ]5;
(ii) The effective date of the election made pursuant to
this Interest Election Request is [ ], 201[ ] (which shall be a Business Day); [and]
(iii) The resulting Borrowing is to be [an ABR Borrowing][a
Eurodollar Borrowing][; and]
[(iv) The Interest Period applicable to the resulting Borrowing
after giving effect to such election is [ ].]6
The above request has been made to the Administrative Agent
by telephone at (302) 894-6109.
5 If different options are being elected with respect
to different portions of the Borrowing, provide the portions thereof to be allocated to each resulting Borrowing (in which case
the information specified pursuant to items (iii) and (iv) shall be specified for each resulting Borrowing).
6 To be included if the resulting Borrowing is a
Eurodollar Borrowing
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Very truly yours, |
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XLIT LTD. |
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By: |
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Name: |
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Title: |
EXHIBIT D
FORM OF STANDBY LETTER OF CREDIT
Date: _____________
Beneficiary:
Citibank, N.A.
c/o Citicorp North America, Inc.
3800 Citibank Center
Building B 3rd Floor
Tampa, FL 33610
Letter of Credit No. CUSA _________
Gentlemen:
By order of XLIT LTD. (“XLIT LTD.”),
we hereby open our irrevocable Standby Letter of Credit No. CUSA _________ (this “Credit”), in your favor for
an amount of USD _____________________ Dollars and No Cents (__________ U.S. Dollars and 00/100), which may adjust from time to
time as provided in the next paragraph, effective immediately and expiring at our office located at 399 Park Avenue, New York,
NY 10022-4614 (the “Office”) on _____ __, 20__.
This Credit has been issued in your favor
as security in support of the letters of credit already issued by you or to be issued by you from time to time hereafter for the
account of XLIT LTD. pursuant to the Continuing Agreement for Standby Letters of Credit, dated as of August 6, 2013 (the “Standby
Letter of Credit Agreement”), between XLIT LTD. and you (such letters of credit being hereinafter referred to collectively
as the “Citibank LCs”). The amount outstanding under this Credit may adjust from time to time, without amendment,
to account for (i) drawings hereunder that we have honored (in the amount of such drawing), (ii) cancellation, increase, reduction
or expiration of Citibank LCs, upon receipt by us of your notice describing such cancellation, increase, reduction or expiration
(in the amount of the available amount of the Citibank LCs that have been cancelled or expired or in the amount of such reduction,
as applicable), and (iii) issuance by you from time to time after the date hereof of any Citibank LC (in the amount of the available
amount of such Citibank LC), subject in the case of any increase described in clause (ii) or any issuance described in clause (iii),
to confirmation by us prior to such increase or issuance of the available amount hereunder. In no event shall the amount available
hereunder exceed $___________.
Funds hereunder are available to you against
your sending to us by courier or facsimile either of the following written certifications:
“We hereby demand payment in the
amount of USD ___________ because, in connection with our Standby Letter of Credit No. _________________ (the “Credit”),
the beneficiary has drawn a draft under the Credit (the “Draft”), we did not receive
payment when due for the amount of such Draft.”
“We hereby demand payment in the
amount of USD _________________ (which amount does not exceed the aggregate outstanding undrawn amounts under the letters of credit
issued under the Continuing Agreement for Standby Letters of Credit, dated as of August 6, 2013, as amended, between XLIT LTD. and
Citibank, N.A.” (the “Standby Letter of Credit Agreement”) because there has been an Event of Default
under the Standby Letter of Credit Agreement.”
Any number of multiple draws are permitted
from time to time.
Presentation of drawing document(s) may also
be made by fax transmission to (212) 994-0847, or such other fax number identified by Citicorp USA, Inc. in a written notice to
you. To the extent a presentation is made by fax transmission, you must provide telephone notification thereof to Citicorp USA,
Inc. ((302) 894-6109, Dennis Banfield), prior to or simultaneously with the sending of such fax transmission, provided, however,
that Citicorp USA, Inc.’s receipt of such telephone notice shall not be a condition to payment hereunder.
We hereby agree to honor your drawing documents
as specified above, if presented in compliance with the terms and conditions of this Standby Letter of Credit.
Should you have occasion to communicate with
us regarding this Standby Letter of Credit, please direct your correspondence to our Office, making specific mention of the Letter
of Credit number indicated above.
[Remainder of page left intentionally blank.]
Except as otherwise expressly stated herein,
this Standby Letter of Credit is subject to the International Standby Practices (“ISP98”), International Chamber
of Commerce, Publication No. 590, and as to matters not addressed by the ISP98, shall be governed by and construed in accordance
with the laws of the State of New York and applicable U.S. Federal Law.
CITICORP USA, INC.
AUTHORIZED SIGNATURE
