American National Group Inc 8-K, filed May 8, 2024
American National Group Inc. (ANG-PD)
About this 8-K
American National Group Inc filed this 8-K on May 8, 2024, reporting on events of May 7, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 1.02: Ended a material agreement
- Item 2.01: Completed an acquisition or sale of assets
- Item 2.03: New debt or off-balance-sheet obligation
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 7.01: Regulation FD disclosure
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
| (Address of principal executive offices and zip code) |
(
(Registrant’s telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement |
On May 7, 2024 (the “Effective Date”), American Equity Investment Life Holding Company, an Iowa corporation (the “Company”), entered into a new term loan agreement (the “Term Loan Agreement”), among the Company, the lenders from time to time party thereto and Bank of Montreal, as administrative agent. The Term Loan Agreement provides for the incurrence of $1,750,000,000 in senior unsecured term loans (the “Term Loans”) with the potential to incur additional incremental term facilities. The Term Loans will mature on May 25, 2027 and will bear interest as determined in accordance with the Term Loan Agreement.
The Term Loan Agreement includes customary representations and warranties, affirmative and negative covenants, and events of default for facilities of this type. The Term Loan includes financial covenants tested at quarter-end related to debt to capitalization and net worth
The foregoing description of the Term Loan Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Term Loan Agreement, which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
| Item 1.02 | Termination of a Material Definitive Agreement |
On the Effective Date, the Company repaid in full all indebtedness and other obligations outstanding under, and terminated, the Credit Agreement, dated as of February 15, 2022, among the Company, the lenders party thereto, and Citizens Bank, N.A., as administrative agent.
| Item 2.01 | Completion of Acquisition or Disposition of Assets |
On the Effective Date, the Company, completed its previously announced merger with American National Group, LLC, a Delaware limited liability company (“ANAT”) and an indirect, wholly-owned subsidiary of Brookfield Reinsurance Ltd. (“Brookfield Reinsurance”). Pursuant to the Agreement and Plan of Merger, dated as of May 7, 2024, by and among the Company and ANAT (the “Merger Agreement”), ANAT merged with and into the Company (the “Merger”) in accordance with the Iowa Business Corporation Act (the “IBCA”), with the Company surviving the Merger as an indirect wholly-owned subsidiary of Brookfield Reinsurance (such entity, the “Iowa Surviving Company”). In connection with the Merger, the Iowa Surviving Company adopted an amendment to its articles of incorporation, a copy of which is filed herewith as Exhibit 3.1 and is incorporated herein by reference, and became the successor issuer of ANAT’s preferred shares designated as “Preferred Stock, Series C”. The Company’s issued and outstanding shares of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, par value $1.00 per share (the “Series A Preferred Stock”) and 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, par value $1.00 per share (the “Series B Preferred Stock”) were unaffected by the Merger and remain outstanding. Depositary receipts for the Series A Preferred Stock and Series B Preferred Stock are listed on the New York Stock Exchange under the ticker symbols “AELPRA” and “AELPRB”, respectively. Following the Reincorporation (as defined below) ticker symbols will change, as described under Item 8.01 of this Current Report on Form 8-K.
The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is subject to and qualified in its entirety by reference to the Merger Agreement, a copy of which is filed herewith as Exhibit 2.1 and is incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
On June 13, 2022, ANAT issued $500 million aggregate principal amount of its 6.144% Senior Notes due 2032 (the “2032 Notes”) pursuant to an Indenture, dated as of June 13, 2022 (the “Base Indenture”), by and between ANAT and Wilmington Trust, National Association, as trustee (the “Trustee”).
As required by the Base Indenture, in connection with the consummation of the Merger, on the Effective Date, the Iowa Surviving Company and the Trustee entered into a First Supplemental Indenture (the “First Supplemental Indenture”) to reflect that the Iowa Surviving Company, as successor to ANAT, expressly assumed all of ANAT’s obligations under the 2032 Notes and the Base Indenture.
The 2032 Notes bear interest at a rate of 6.144% per annum and mature on June 13, 2032. Interest on the 2032 Notes is payable in arrears on June 13 and December 13 of each year. The 2032 Notes are the Iowa Surviving Company’s general unsecured obligations which rank equally in right of payment with all of the Iowa Surviving Company’s unsecured and unsubordinated indebtedness from time to time outstanding. The 2032 Notes are not guaranteed.
The 2032 Notes are redeemable, at the Iowa Surviving Company’s option, in whole or in part, (a) at any time prior to March 13, 2032 (the date that is three months prior to the scheduled maturity date), at the applicable make-whole redemption price specified in the Base Indenture, and (b) at any time on or after March 13, 2032 and prior to maturity, at par, plus, in the case of each of clauses (a) and (b), accrued and unpaid interest thereon to, but excluding, the redemption date.
The Base Indenture contains certain covenants that, among other things, limit the ability of the Iowa Surviving Company to incur secured indebtedness and to consummate a merger, consolidation or sale of all or substantially all of its assets. These covenants are subject to a number of important exceptions and qualifications set forth in the Base Indenture. The Base Indenture also provides for customary events of default which, if any occurs, would permit holders of at least 25% in aggregate principal amount of the 2032 Notes to declare (or, in certain cases automatically result in) the principal of and accrued interest on the 2032 Notes becoming immediately due and payable.
The foregoing description of the Base Indenture, the First Supplemental Indenture and the 2032 Notes does not purport to be complete and is subject to and qualified in its entirety by references to the Base Indenture, the First Supplemental Indenture and the form of note representing the 2032 Notes, copies of which are filed herewith as Exhibits 4.1, 4.2 and 4.3, respectively, and are incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information set forth under Item 2.01 and Item 8.01 of this Current Report on Form 8-K is incorporated in this Item 5.03 by reference.
| Item 7.01 | Regulation FD. |
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated in this Item 7.01 by reference.
In accordance with the terms of the Series A Preferred Stock, the Board of Directors of American National Group Inc. (as the successor entity to the Company) has declared a cash dividend of $371.8750000 per share of Series A Preferred Stock (equivalent to $0.371875000 per depositary share representing the Series A Preferred Stock). The dividend will be payable on June 1, 2024 to shareholders of Series A Preferred Stock of record as of May 17, 2024.
Additionally, in accordance with the terms of the Series B Preferred Stock, the Board of Directors of American National Group Inc. (as the successor entity to the Company) has declared a cash dividend of $414.0625000 per share of Series B Preferred Stock (equivalent to $0.414062500 per depositary share representing the Series B Preferred Stock). The dividend will be payable on June 1, 2024 to shareholders of Series B Preferred Stock of record as of May 17, 2024.
| Item 8.01 | Other Events. |
On the Effective Date, following the completion of the Merger, pursuant to a Plan of Domestication, dated as of May 7, 2024 (the “Plan of Domestication”), the Iowa Surviving Company discontinued its existence as an Iowa Corporation as provided under IBCA, including Section 931 of the IBCA, and, pursuant to the General Corporation Law of the State of Delaware (the “DGCL”), including Section 388 of the DGCL, continued its existence under the DGCL as a corporation incorporated in the State of Delaware (the “Reincorporation”, and such corporation, the “Delaware Surviving Company”). In connection with the Reincorporation, the Delaware Surviving Company changed its name from American Equity Investment Life Holding Company to American National Group Inc. and adopted a new certificate of incorporation (the “Certificate of Incorporation”) and bylaws, copies of which are filed herewith as Exhibits 3.2 and 3.3, respectively, and are incorporated herein by reference. The Certificate of Incorporation and bylaws of American National Group Inc. are effective as of the Effective Date.
Each share of each of the Series A Preferred Stock, the Series B Preferred Stock and the Preferred Stock, Series C, par value $0.01 per share (the “Series C Preferred Stock”) of the Iowa Surviving Company outstanding immediately prior to the Reincorporation was automatically converted into an equivalent share of Series A Preferred Stock, Series B Preferred Stock or Series C Preferred Stock, respectively, of the Delaware Surviving Company. The terms, rights, restrictions and qualifications of the Series A Preferred Stock, which were unaffected by the Merger and the Reincorporation, are set forth on Exhibit A to the Certificate of Incorporation. The terms, rights, restrictions and qualifications of the Series B Preferred Stock, which were unaffected by the Merger and the Reincorporation, are set forth on Exhibit B to the Certificate of Incorporation. The terms, rights, restrictions and qualifications of the Series C Preferred Stock, which were unaffected by the Merger and the Reincorporation, are set forth on Exhibit C to the Certificate of Incorporation. Upon effectiveness of the Reincorporation, the CUSIP number relating to (a) the Series A Preferred Stock changed to 025676800; (b) the depositary shares representing a 1/1,000th interest in a share of Series A Preferred Stock changed to 025676875; (c) the Series B Preferred Stock changed to 025676883; and (d) the depositary shares representing a 1/1,000th interest in a share of Series B Preferred Stock changed to 025676867. In connection with the Reincorporation, the Delaware Surviving Company’s Series A Preferred Stock and Series B Preferred Stock will be listed on the New York Stock Exchange under the ticker symbols “ANGPRA” and “ANGPRB”, respectively, to be effective on or around May 13, 2024.
The foregoing description of the Plan of Domestication and the Reincorporation does not purport to be complete and is subject to and qualified in its entirety by reference to the Plan of Domestication, a copy of which is filed herewith as Exhibit 2.2 and is incorporated herein by reference, and to the certificate of incorporation and bylaws.
Certain U.S. Federal Income Tax Consequences
The following is a summary of certain U.S. federal income tax considerations of the Reincorporation with respect to U.S. Holders (as defined below) of the Series A Preferred Stock and the Series B Preferred Stock. The discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), its legislative history, existing and proposed regulations, published rulings and court decisions, all as currently in effect. These authorities are subject to change, possibly on a retroactive basis.
This discussion is limited to holders who hold their Series A Preferred Stock and Series B Preferred Stock solely as capital assets for tax purposes and does not address the tax considerations of transactions occurring prior to or after the Reincorporation (whether or not such transactions are in connection with the Reincorporation).
For purposes of this summary, a “U.S. Holder” is a beneficial owner of Series A Preferred Stock or Series B Preferred Stock that is, for U.S. federal income tax purposes, an individual who is a citizen or a resident of the United States; a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized under the laws of the United States or any state thereof or the District of Columbia; an estate the income of which is subject to U.S. federal income taxation regardless of its source; or a trust, if it (1) is subject to the primary supervision of a U.S. court and one or more U.S. persons have the authority to control all substantial decisions of the trust, or (2) has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person for U.S. federal income tax purposes.
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds Series A Preferred Stock or Series B Preferred Stock, the U.S. federal income tax treatment of a partner generally will depend on the status of the partner and the activities of the partnership. A partner of a partnership holding Series A Preferred Stock or Series B Preferred Stock should consult its own tax adviser regarding the U.S. federal income tax consequences to the partner of the Reincorporation.
This discussion is not a complete summary of all the U.S. federal income tax considerations that may be relevant to holders. Holders are urged to consult their own tax advisors as to the U.S. federal, state, local and non-U.S. income and other tax implications to them of the Reincorporation.
We have not requested a ruling from the IRS or an opinion of counsel regarding the U.S. federal income tax consequences of the Reincorporation. However, we believe:
| · | The Reincorporation will constitute a tax-free reorganization under Section 368(a) of the Code; |
| · | No gain or loss will be recognized by holders of the Series A Preferred Stock or Series B Preferred Stock of the Iowa Surviving Company on receipt of the Series A Preferred Stock or Series B Preferred Stock of the Delaware Surviving Company pursuant to the Reincorporation; |
| · | The aggregate tax basis of the Series A Preferred Stock and Series B Preferred Stock of the Delaware Surviving Company received by each holder will equal the aggregate tax basis of the Series A Preferred Stock and Series B Preferred Stock of the Iowa Surviving Company surrendered by such holder in exchange therefor; and |
| · | The holding period of the Series A Preferred Stock and Series B Preferred Stock of the Delaware Surviving Company received by each holder will include the period during which such holder held the Series A Preferred Stock or Series B Preferred Stock of the Iowa Surviving Company surrendered in exchange therefor. |
| Item 9.01 | Exhibits. |
(d) Exhibits
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| AMERICAN NATIONAL GROUP INC. |
| Date: May 7, 2024 | By: | /s/ Garrett Williams |
| Garrett Williams | ||
| Corporate Secretary and Senior Vice President |
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (this “Agreement”), dated May 7, 2024, is entered into by and between American Equity Investment Life Holding Company, an Iowa corporation (“AEL”), and American National Group, LLC, a Delaware limited liability company (“ANAT”, and, together with AEL, the “Parties”).
WHEREAS, as of the date hereof, BAM Re Holdings Ltd. (“BAM Re Holdings”), an affiliate of ANAT, owns 12,028,979 shares of common stock, par value $1.00, of AEL (“AEL Stock”).
WHEREAS, as of the date hereof, ANAT owns 56,630,848 shares of AEL Stock.
WHEREAS, AEL and ANAT intend to effect a merger of ANAT with and into AEL, with AEL being the surviving entity (the “Merger”), in accordance with the terms of the Iowa Business Corporation Act (the “IBCA”), the Delaware Limited Liability Company Act (the “DLLCA”) and upon the terms and conditions hereinafter set forth.
WHEREAS, this Agreement has been approved by the sole member of ANAT, by the unanimous written consent of the board of directors of AEL and by the unanimous written consent of the shareholders of AEL.
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the terms and provisions of the Merger shall be hereinafter set forth:
ARTICLE ONE
MERGER
1.1 Upon the terms and subject to the conditions set forth in this Agreement and the applicable provisions of the IBCA and DLLCA, ANAT shall be merged with and into AEL, and the separate existence of ANAT shall cease. AEL shall be the surviving entity (the “Surviving Company”) in such Merger. The Merger shall become effective at 9:00 am Eastern Time on May 7, 2024, as set forth in the articles of merger to be filed with the Secretary of State of the State of Iowa (the “Articles of Merger”, and such time, the “Effective Time”).
1.2 AEL shall continue its existence as the surviving corporation of the Merger under the laws of the State of Iowa.
1.3 From and after the Effective Time, all the property, assets, rights, privileges, powers and franchises of ANAT and AEL shall vest in the Surviving Company, and all debts, liabilities, duties and obligations of ANAT and AEL shall become the debts, liabilities, duties and obligations of the Surviving Company.
1.4 At the Effective Time, by virtue of the Merger and without any action on the part of any person or entity:
| (a) | all of the common shares of ANAT outstanding immediately prior to the Effective Time will be converted into, in the aggregate, 9,087 duly authorized, validly issued, fully paid and nonassessable shares of common stock, par value $0.01 per share, in the Surviving Company (“Surviving Company Stock”); |
| (b) | each share of AEL Stock owned by ANAT immediately prior to the Effective Time will be canceled and shall cease to exist and be outstanding, and no consideration shall be delivered in exchange thereof; |
| (c) | all of the shares of AEL Stock owned by BAM Re Holdings immediately prior to the Effective Time will be converted into, in the aggregate, 913 shares of Surviving Company Stock; |
| (d) | (i) each share of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, of AEL (“Series A Preferred Stock”) issued and outstanding immediately prior to the Effective Time shall be unaffected by the Merger and remain outstanding as one share of Series A Preferred Stock of the Surviving Company entitled to the same dividends and all other preferences and privileges, voting rights, relative, participating, optional and other special rights, and subject to the same qualifications, limitations and restrictions, set forth in the certificate of designations applicable thereto as of immediately prior to the Effective Time, and (ii) each depositary share issued pursuant to the deposit agreement to which the depositary shares are subject, representing one-thousandth of one share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time shall be unaffected by the Merger and remain outstanding and represent one-thousandth of one share of Series A Preferred Stock of the Surviving Company; |
| (e) | (i) each share of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, of AEL (“Series B Preferred Stock”) issued and outstanding immediately prior to the Effective Time shall be unaffected by the Merger and remain outstanding as one share of Series B Preferred Stock of the Surviving Company entitled to the same dividends and all other preferences and privileges, voting rights, relative, participating, optional and other special rights, and subject to the same qualifications, limitations and restrictions, set forth in the certificate of designations applicable thereto as of immediately prior to the Effective Time, and (ii) each depositary share issued pursuant to the deposit agreement to which the depositary shares are subject, representing one-thousandth of one share of Series B Preferred Stock issued and outstanding immediately prior to the Effective Time shall be unaffected by the Merger and remain outstanding and represent one-thousandth of one share of Series B Preferred Stock of the Surviving Company; and |
| (f) | each preferred share of ANAT issued and outstanding immediately prior to the Effective Time shall automatically become one duly authorized, validly issued, fully paid and nonassessable share of Preferred Stock, Series C of the Surviving Company. |
| 1.5 | The Merger shall have the effects set forth in this Agreement and in the applicable provisions of the IBCA and the DLLCA. |
2
1.6 The Parties shall treat the Merger as a transfer of the assets and assignment of the liabilities of ANAT to AEL to which Section 1001 of the Internal Revenue Code of 1986, as amended, and Treasury Regulation Section 1.1502-13 applies for U.S. federal tax purposes.
ARTICLE TWO
ARTICLES OF INCORPORATION
Except with respect to the preferred stock of the Surviving Company as set forth in Section 1.4(d), Section 1.4(e) and Section 1.4(f), the articles of incorporation of AEL in effect immediately before the Effective Time shall be the articles of incorporation of the Surviving Company until thereafter duly amended as provided therein or by applicable law.
ARTICLE THREE
BYLAWS
The bylaws of AEL in effect immediately before the Effective Time shall be the bylaws of the Surviving Company until thereafter duly amended as provided therein or by applicable law.
ARTICLE FOUR
DIRECTORS AND OFFICERS
From and after the Effective Time, until their successors are duly elected or appointed and qualified in accordance with applicable law, (a) the board of directors of AEL immediately before the Effective Time shall be the board of the Surviving Company and (b) the officers of AEL immediately before the Effective Time shall be the officers of the Surviving Company.
ARTICLE FIVE
AUTHORIZATION
The Parties each warrant to the other that the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby are within their corporate or limited liability company powers, as applicable, and have been duly authorized by all necessary corporate or limited liability company action, as applicable.
ARTICLE SIX
AMENDMENTS
At any time prior to the filing of the Articles of Merger and the Certificate of Merger to be filed with the Secretary of State of the State of Delaware (the “Delaware Certificate of Merger”, together with the Articles of Merger, the “Certificates of Merger”), this Agreement may be amended by written agreement of the Parties, authorized by the sole member or board of directors of each Party, as applicable, to the extent permitted by applicable law.
ARTICLE SEVEN
MISCELLANEOUS
7.1 This Agreement will be governed by and construed in accordance with the laws of the State of Iowa, without giving effect to the principles of conflict of laws thereof.
3
7.2 If, at any time after the Effective Time, any further action is determined by the board of directors of the Surviving Company to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Company with full right, title and possession of and to all property, assets, rights, privileges, powers, franchises, debts, liabilities, duties and obligations of ANAT, the officers of the Surviving Company shall be fully authorized (in the name of ANAT and the Surviving Company) to take such action.
7.3 This Agreement may be executed and delivered (including by electronic, facsimile transmission, DocuSign or .pdf) in counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any such agreement or instrument will raise the use of electronic delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic delivery as a defense to the formation of a contract, and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.
7.4 If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder shall remain in full force and effect and shall be in no way affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to the Parties.
7.5 At any time prior to the filing of the Certificates of Merger, this Agreement may be terminated and abandoned by written agreement of the Parties, authorized by the sole member of ANAT and the board of directors of AEL.
[Signature Pages Follow]
4
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| American Equity Investment LIFE Holding Company | ||
| BY: | /s/ Timothy A. Walsh | |
| Name: Timothy A. Walsh | ||
| Title: President and Chief Executive Officer | ||
| American National Group, LLC | ||
| BY: | /s/ Timothy A. Walsh | |
| Name: Timothy A. Walsh | ||
| Title: President and Chief Executive Officer | ||
[Signature Page to Short Form ANAT/AEL Merger Agreement]
Exhibit 2.2
PLAN OF DOMESTICATION
OF
AMERICAN
eQUITY iNVESTMENT lIFE hOLDING cOMPANY
(An IOWA CORPORATION)
INTO
American National Group Inc.
(A DELAWARE CORPORATION)
This Plan of Domestication (this “Plan”), dated as of May 7, 2024, is hereby authorized, adopted and approved by American Equity Investment Life Holding Company, an Iowa corporation (the “Domesticating Corporation”), in order to set forth the terms, conditions and procedures governing the domestication of the Domesticating Corporation into a Delaware corporation (the “Domestication”) in accordance with Section 490.921 of the Iowa Business Corporation Act (as amended, the “IBCA”) and Section 265 of the General Corporation Law of the State of Delaware (as amended, the “DGCL”).
WHEREAS, the Domesticating Corporation is a corporation formed and existing under the laws of the State of Iowa, having its principal executive offices at 6000 Westown Parkway, West Des Moines, Iowa, 50266;
WHEREAS, domestication of an Iowa corporation into a Delaware corporation is permitted under Section 490.921 of the IBCA and Section 265 of the DGCL; and
WHEREAS, the Board of Directors of the Domesticating Corporation (the “Board”) has determined that it is in the best interests of the Domesticating Corporation and its stockholders for the Domesticating Corporation to domesticate to a Delaware corporation in accordance with Section 490.921 of the IBCA and Section 265 of the DGCL upon the terms and subject to the conditions and in accordance with the procedures set forth herein, and the Board has authorized, adopted and approved the Domestication and the execution, delivery and filing of any and all instruments, certificates and documents necessary or desirable in connection therewith;
WHEREAS, the Board of Directors has submitted this Plan to the Domesticating Corporation’s stockholders for approval, and the Domesticating Corporation’s stockholders have unanimously approved this Plan.
NOW, THEREFORE, the Domesticating Corporation does hereby authorize, adopt and approve this Plan to effectuate the domestication of the Domesticating Corporation into a Delaware corporation as follows:
SECTION 1.01. Domestication; Effect of Domestication. Upon the terms and subject to the conditions of this Plan and pursuant to the relevant provisions of the IBCA and DGCL, including, without limitation, Section 490.921 of the IBCA and Section 265 of the DGCL, respectively, the Domesticating Corporation shall domesticate pursuant to the Domestication into a Delaware corporation named “American National Group Inc.” (the “Resulting Corporation”) at the Effective Time (as defined below), having its principal executive offices at 6000 Westown Parkway, West Des Moines, Iowa, 50266. The Domesticating Corporation shall not be required to wind up its affairs or pay its liabilities and distribute its assets as a result of the Domestication, and the Domestication shall not be deemed to constitute a dissolution of the Domesticating Corporation and shall constitute a continuation of the existence of the Domesticating Corporation in the form of a corporation of the State of Delaware. The Domestication shall also have the other effects specified in the applicable provisions of the IBCA and the DGCL, including, without limitation, subsections (d), (c), (f) and (g) of Section 265 of the DGCL, and as specified herein.
SECTION 1.02. Filings; Effective Time. The Domestication shall be effected by filing: (a) with the Secretary of State of the State of Iowa duly executed articles of domestication meeting the requirements of the IBCA, including Section 490.922 (the “Articles of Domestication”); and (b) with the Secretary of State of the State of Delaware (i) a duly executed certificate of conversion to corporation meeting the requirements of the DGCL, including Sections 103 and 265 (the “Certificate of Conversion”) and (ii) a duly executed and acknowledged certificate of incorporation of the Resulting Corporation, substantially in the form set forth on Exhibit A attached hereto (the “Certificate of Incorporation”). The Domestication shall become effective upon the effective time as shall be specified in the Articles of Domestication and the Certificate of Conversion. The date and time of such effectiveness is referred to herein as the “Effective Time.”
SECTION 1.03. Bylaws. At the Effective Time, the bylaws of the Resulting Corporation shall be substantially in the form set forth on Exhibit B attached hereto, and shall be adopted as such by the Board of Directors of the Resulting Corporation.
SECTION 1.04. Directors and Officers. Automatically by virtue of the Domestication and without any further action on the part of the Domesticating Corporation, the Resulting Corporation or any equityholder thereof, from and after the Effective Time, until the expiration of their respective terms of office and their successors are duly elected or appointed and qualified in accordance with applicable law or until their earlier death, resignation or removal, (a) the board of directors of the Domesticating Corporation immediately prior to the Effective Time shall be the board of the Resulting Corporation and (b) the officers of the Domesticating Corporation immediately prior to the Effective Time shall be the officers of the Domesticating Corporation.
SECTION 1.05. Effect of the Domestication on Common Stock. Upon the terms and subject to the conditions of this Plan, at the Effective Time, automatically by virtue of the Domestication and without any further action on the part of the Domesticating Corporation, the Resulting Corporation or any equityholder thereof, each share of common stock, par value $0.01 per share of the Domesticating Corporation outstanding immediately prior to the Effective Time shall be converted into one share of common stock, par value $0.01 per share, of the Resulting Corporation (the “Resulting Corporation Common Stock”) and all such shares of Resulting Company Common Stock shall be validly issued, fully paid and nonassessable.
SECTION 1.06. Effect of the Domestication on Preferred Stock. Upon the terms and subject to the conditions of this Plan, at the Effective Time, automatically by virtue of the Domestication and without any further action on the part of the Domesticating Corporation, the Resulting Corporation or any equityholder thereof,
2
(a) (i) each share of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, of the Domesticating Corporation (“Domesticating Corporation Series A Preferred Stock”) issued and outstanding immediately prior to the Effective Time shall be converted into an equivalent share of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, of the Resulting Corporation (“Resulting Corporation Series A Preferred Stock”) entitled to the same dividends and all other rights, preferences, privileges and voting powers, and limitations and restrictions, in each case, as set forth in the certificate of designations applicable thereto as of immediately prior to the Effective Time, and (ii) each depositary share issued pursuant to the deposit agreement to which the depositary shares are subject, representing one-thousandth of one share of Domesticating Corporation Series A Preferred Stock, issued and outstanding immediately prior to the Effective Time shall be converted into a depositary share representing one-thousandth of one share of Resulting Corporation Series A Preferred Stock;
(b) (i) each share of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, of the Domesticating Corporation (“Domesticating Corporation Series B Preferred Stock”) issued and outstanding immediately prior to the Effective Time shall be shall be converted into an equivalent share of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, of the Resulting Corporation (“Resulting Corporation Series B Preferred Stock”) entitled to the same dividends and all other and all other rights, preferences, privileges and voting powers, and limitations and restrictions, in each case, as set forth in the certificate of designations applicable thereto as of immediately prior to the Effective Time, and (ii) each depositary share issued pursuant to the deposit agreement to which the depositary shares are subject, representing one-thousandth of one share of Domesticating Corporation Series B Preferred Stock issued and outstanding immediately prior to the Effective Time, shall be shall be converted into a depositary share representing one-thousandth of one share of Resulting Corporation Series B Preferred Stock; and
(c) each share of Preferred Stock, Series C, of the Domesticating Corporation (“Domesticating Corporation Series C Preferred Stock”) issued and outstanding immediately prior to the Effective Time shall be converted into an equivalent share of Preferred Stock, Series C, of the Resulting Corporation (“Resulting Corporation Series C Preferred Stock”) entitled to the same dividends and all other preferences and privileges, voting rights, relative, participating, optional and other special rights, and subject to the same qualifications, limitations and restrictions, as set forth in the certificate of designations applicable thereto as of immediately prior to the Effective Time.
SECTION 1.07. Further Assurances. If, at any time after the Effective Time, the Resulting Corporation shall determine or be advised that any deeds, bills of sale, assignments, agreements, documents or assurances or any other acts or things are necessary, desirable or appropriate, consistent with the terms of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Resulting Corporation its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Domesticating Corporation, or (b) to otherwise carry out the purposes of this Plan, the Resulting Corporation and its appropriate officers and directors (or their designees), are hereby authorized to solicit in the name of the Domesticating Corporation any third-party consents or other documents required to be delivered by any third party, to execute and deliver, in the name and on behalf of the Domesticating Corporation, all such deeds, bills of sale, assignments, agreements, documents and assurances and do, in the name and on behalf of the Domesticating Corporation, all such other acts and things necessary, desirable or appropriate to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties or assets of the Domesticating Corporation and otherwise to carry out the purposes of this Plan.
3
SECTION 1.08. Implementation and Interpretation This Plan shall be implemented and interpreted, prior to the Effective Time, by the Board and, following the Effective Time, by the Board of Directors of the Resulting Corporation, (a) each of which shall have full power and authority to delegate and assign any matters covered hereunder to any other party or parties, including, without limitation, any officers of the Domesticating Corporation or the Resulting Corporation, as the case may be, and (b) the interpretations and decisions of which shall be final, binding and conclusive on all parties.
SECTION 1.09. Termination and Amendment. The Board may, at any time after the stockholders approve of this Plan, but before the Effective Time, and from time to time during such period, abandon, terminate, amend or modify this Plan without any further consent or approval of any stockholder of the Domesticating Corporation or any other person or entity, provided that any such amendment shall not alter or change (a) the amount or kind of shares or other securities to be received hereunder by the stockholders of the Domesticating Corporation or (b) any term of the Certificate of Incorporation other than changes permitted to be made without stockholder approval by the DCGL.
SECTION 1.10. Third Party Beneficiaries. This Plan shall not confer any rights or remedies upon any person or entity other than as expressly provided herein.
SECTION 1.11. Severability. If any provision of this Plan or the application thereof to any person, entity or circumstance is held invalid or unenforceable to any extent, the remainder of this Plan and the application of that provision to other persons, entities or circumstances shall not be affected thereby, and that provision shall be enforced to the greatest extent permitted by law.
SECTION 1.12. Governing Law. This Plan shall be construed in accordance with and governed by the law of the State of Delaware, without regard to the conflict of laws provisions thereof.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the Domesticating Corporation has caused this Plan to be executed by its duly authorized representative as of the date first stated above.
| American Equity Investment Life Holding Company, | |
| By: | /s/ Timothy A. Walsh | |
| Name: Timothy A. Walsh | ||
| Title: President and Chief Executive Officer |
EXHIBIT A
Certificate of Incorporation
[Attached.]
CERTIFICATE OF Incorporation
OF
AMERICAN NATIONAL GROUP INC.
The undersigned, acting as the incorporator of a corporation under and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies that:
FIRST: The name of the corporation (the “Corporation”) is American National Group Inc.
SECOND: The address, including street, number, city, and county, of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
THIRD: The Corporation is being incorporated in connection with the conversion of American Equity Investment Life Holding Company, an Iowa corporation (the “Converting Corporation”) into the Corporation (the “Conversion”), and this Certificate of Incorporation is being filed simultaneously with the Certificate of Conversion of the Converting Corporation to the Corporation pursuant to the terms of the DGCL, including Section 265. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
FOURTH: This Certificate of Incorporation shall be effective at 4:01pm Eastern Time on May 7, 2024.
FIFTH: The aggregate number of shares of all classes of stock which the Corporation shall have authority to issue is 1,919,500, of which:
| i. | 1,909,500 shares shall be designated Preferred Stock, comprising of (x) 20,000 shares of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, par value $1.00 per share (the “Series A Preferred Stock”), (y) 12,000 shares of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, par value $1.00 per share (the “Series B Preferred Stock”) and (z) 1,877,500 shares of Preferred Stock, Series C, par value $0.01 per share (the “Series C Preferred Stock”; the Series C Preferred Stock, and collectively with Series A Preferred Stock and the Series B Preferred Stock, the “Preferred Stock”); and |
| ii. | 10,000 shares, par value $0.01 per share, shall be designated Common Stock (“Common Stock”). |
| 2 |
SIXTH: The name and the mailing address of the incorporator are as follows:
| NAME | MAILING ADDRESS |
| ANG Midco I LLC |
c/o BAMR US Holdings LLC 250 Vesey Street, 15th Floor New York, New York 10281-1023 USA |
SEVENTH: Each holder of shares of Common Stock shall be entitled to one vote for each such share of Common Stock on each matter properly submitted to the stockholders on which the holders of shares of Common Stock are entitled to vote.
EIGHTH: Subject to the rights of the holders of any outstanding shares of Preferred Stock and to applicable law, the holders of shares of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board of Directors from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
NINTH: Subject to the rights of the holders of any outstanding shares of Preferred Stock and to applicable law, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of the Common Stock held by them.
TENTH: The Corporation may issue fractional shares of Common Stock. Fractional shares shall be entitled to dividends (on a pro rata basis), and the holders of fractional shares shall entitled to all rights as stockholders of the Corporation to the extent provided herein and under applicable law in respect of such fractional shares.
ELEVENTH: The following is a statement of the designations, voting powers, preferences and rights and the qualifications, limitations or restrictions of Preferred Stock.
(1) Exhibit A attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series A Preferred Stock and is incorporated herein by reference as if set forth in full.
(2) Exhibit B attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series B Preferred Stock and is incorporated herein by reference as if set forth in full.
(3) Exhibit C attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series C Preferred Stock and is incorporated herein by reference as if set forth in full.
| 3 |
(4) Except as set forth in Exhibit A, Exhibit B and Exhibit C, holders of shares of Preferred Stock shall not have any right to vote for election of directors or on any other matter or any right to notice of any meeting of stockholders.
(5) In the event of any complete, or substantially complete, voluntary or involuntary, liquidation, dissolution or winding up of the Corporation, before any distribution or payment shall be made to the holders of shares of Common Stock, all of the assets of the Corporation shall be paid and distributed among the shareholders of the Corporation in accordance with the terms set forth in each of Exhibit A, Exhibit B and Exhibit C. Neither the merger nor consolidation of the Corporation into or with any other corporation, nor the merger of any corporation into the Corporation, nor the sale or transfer by the Corporation of all or any part of its assets shall be deemed a liquidation, dissolution or winding up of the Corporation for the purposes of this subsection (5).
TWELFTH: In furtherance and not in limitation of the powers conferred upon it by law, subject to the rights of the holders of any outstanding shares of Preferred Stock, the Board of Directors of the Corporation is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.
THIRTEENTH: To the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereafter be amended, no director or officer of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. No amendment to or repeal of this Article THIRTEENTH shall apply to or have any effect on the liability or alleged liability of any director or officer of the Corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment or repeal.
FOURTEENTH: The Corporation shall, to the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereinafter be amended, indemnify any and all persons whom it shall have power to indemnify under such law from and against any and all of the expenses, liabilities, or other matters referred to in or covered by such law. Such indemnification shall be mandatory and not discretionary. The indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Any repeal or modification of this Article FOURTEENTH shall not adversely affect any right to indemnification of any persons existing at the time of such repeal or modification with respect to any matter occurring prior to such repeal or modification.
| 4 |
The Corporation shall, to the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereinafter be amended, advance all costs and expenses (including without limitation, attorneys’ fees and expenses) incurred by any director or officer within 15 days of the presentation of same to the Corporation, with respect to any one or more actions, suits or proceedings, whether civil, criminal, administrative or investigative, so long as the Corporation receives from the director or officer an unsecured undertaking to repay such expenses if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation under the DGCL. Such obligation to advance costs and expenses shall be mandatory, and not discretionary, and shall include, without limitation, costs and expenses incurred in asserting affirmative defenses, counterclaims and cross claims. Such undertaking to repay may, if first requested in writing by the applicable director or officer, be on behalf of (rather than by) such director or officer, provided that in such case the Corporation shall have the right to approve the party making such undertaking.
FIFTEENTH: Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
[Remainder of Page Intentionally Left Blank]
| 5 |
THE UNDERSIGNED, the incorporator of the Corporation, hereby executes this certificate of incorporation as of this 3rd day of May, 2024.
| ANG MIDCO I LLC | ||
| By: | /s/ Paul Forestell | |
| Name: | Paul Forestell | |
| Title: | Manager | |
[Signature Page to American National Group Inc. Certificate of Incorporation]
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A” (the “Series A Preferred Stock”). Each share of Series A Preferred Stock shall be identical in all respects to every other share of Series A Preferred Stock, except as to the respective dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted pursuant to Section 5(a) below.
2. Number of Shares. The authorized number of shares of Series A Preferred Stock shall be 20,000. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series A Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series A Preferred Stock, issue additional shares of Series A Preferred Stock that shall form a single series with the Series A Preferred Stock initially authorized hereby, provided that such additional shares of Series A Preferred Stock are fungible for U.S. federal income tax purposes with the Series A Preferred Stock authorized hereby. Shares of Series A Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series A Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Business Day” means any day other than (i) a Saturday or Sunday or a legal holiday or (ii) a day on which federal or state banking institutions in the Borough of Manhattan, The City of New York, are authorized or obligated by law, executive order or regulation to close.
(d) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(e) “Calculation Agent” means, at any time, the person or entity appointed by the Corporation and serving as such agent with respect to the Series A Preferred Stock at such time.
(f) “Certificate of Designations” has the meaning specified in the preamble.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(h) “Dividend Payment Date” has the meaning specified in Section 5(a).
(i) “Dividend Period” has the meaning specified in Section 5(a).
(j) “Dividend Record Date” has the meaning specified in Section 5(a).
(k) “DTC” means The Depository Trust Company.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(m) “First Call Date” means December 1, 2024.
(n) “first series” has the meaning specified in Section 5(b).
(o) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the weekly average yield to maturity for U.S. Treasury securities with a maturity of five years from the next Reset Date and trading in the public securities markets or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date, and (B) the other maturity as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case as published in the most recent H.15 (519). If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Dividend Determination Date.
(p) “H.15 (519)” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System and “most recent H.15 (519)” means the H.15 (519) published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
(q) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series A Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(r) “Liquidation Preference” has the meaning specified in Section 6(b).
(s) “Parity Stock” means any class or series of the Corporation’s stock that ranks equally with the Series A Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(t) “person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
(u) “Preferred Stock” means any and all series of preferred stock, having any par value per share, of the Corporation, including the Series A Preferred Stock.
(v) “Preferred Stock Directors” has the meaning specified in Section 8(b).
(w) “Rating Agency Event” means any nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) of the Exchange Act), that then publishes a rating for the Corporation (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Series A Preferred Stock, which amendment, clarification or change results in:
(i) the shortening of the length of time the Series A Preferred Stock is assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial issuance of the Series A Preferred Stock; or
(ii) the lowering of the equity credit (including up to a lesser amount) assigned to the Series A Preferred Stock by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the initial issuance of the Series A Preferred Stock.
(x) “Registrar” means the registrar with respect to the Series A Preferred Stock, which shall initially be Computershare Inc., and its successors, including any successor appointed by the Corporation.
(y) “Regulatory Capital Event” means that the Corporation becomes subject to capital adequacy supervision by a capital regulator and the capital adequacy guidelines that apply to the Corporation as a result of being so subject set forth criteria pursuant to which the liquidation preference amount of the Series A Preferred Stock would not qualify as capital under such capital adequacy guidelines, as the Corporation may determine at any time, in its sole discretion.
(z) “Reset Date” means the First Call Date and each date falling on the fifth anniversary of the preceding Reset Date.
(aa) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of such Reset Period.
(bb) “Reset Period” means the period from, and including, the First Call Date to, but excluding, the next following Reset Date and thereafter each period from, and including, each Reset Date to, but excluding, the next following Reset Date.
(cc) “second series” shall have the meaning specified in Section 5(b).
(dd) “Securities Act” means the Securities Act of 1933, as amended.
(ee) “Transfer Agent” means the transfer agent with respect to the Series A Preferred Stock, which shall initially be Computershare Inc., and its successors, including any successor appointed by the Corporation.
(ff) “Voting Preferred Stock” means, with regard to any matter as to which the holders of Series A Preferred Stock are entitled to vote as specified in Section 8 of this Certificate of Designations, any other class or series of preferred stock of the Corporation ranking equally with the Series A Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which like voting rights have been conferred and are exercisable with respect to such matter.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series A Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with any series of Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least two-thirds of the shares of the Series A Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends.
(a) Rate. Dividends on the Series A Preferred Stock will not be mandatory. Holders of Series A Preferred Stock will be entitled to receive, when, as and if declared by the Board (or a duly authorized committee of the Board), out of funds legally available for the payment of dividends, under Iowa law, quarterly in arrears on the first day of March, June, September and December of each year, commencing on March 1, 2020 (each such date, a “Dividend Payment Date”), non-cumulative cash dividends that accrue for the relevant Dividend Period as follows:
(i) from the date of original issue, to, but excluding, the First Call Date at a fixed rate per annum of 5.95% on the stated amount of $25,000 per share; and
(ii) from the First Call Date, during each Reset Period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Dividend Determination Date plus 4.322% on the stated amount of $25,000 per share.
If the Corporation issues additional shares of Series A Preferred Stock after the original issue date, dividends on such shares will accrue from the original issue date if such shares are issued prior to the first Dividend Payment Date. Dividends on Series A Preferred Stock issued after the first Dividend Payment Date will accrue from either the date on which such shares are issued (if such shares are issued on a Dividend Payment Date) or the Dividend Payment Date next preceding the date such shares are issued (if such shares are not issued on a Dividend Payment Date).
Dividends on the Series A Preferred Stock shall not be cumulative. Accordingly, if the Board (or a duly authorized committee of the Board) does not declare a dividend on the Series A Preferred Stock payable in respect of any Dividend Period before the related Dividend Payment Date, (i) such dividend will not accrue, (ii) the Corporation will have no obligation to pay a dividend for that Dividend Period on the Dividend Payment Date or at any future time, whether or not dividends on the Series A Preferred Stock are declared for any future Dividend Period and (iii) no interest, or sum of money in lieu of interest, will be payable in respect of any dividend not so declared.
Dividends, if so declared, that are payable on the Series A Preferred Stock on any Dividend Payment Date will be payable to holders of record of the Series A Preferred Stock as they appear on the books of the Corporation on the applicable record date, which shall be the 15th calendar day before such Dividend Payment Date or such other record date fixed by the Board (or a duly authorized committee of the Board) that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall (i) commence on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on, and include, the original issue date of the Series A Preferred Stock (provided that for any share of Series A Preferred Stock issued after the original issue date of the Series A Preferred Stock, the initial Dividend Period for such shares may commence on and include the original issue date of the Series A Preferred Stock if such shares are issued prior to the first Dividend Payment Date or otherwise will commence on and include the date on which such shares are issued (if it is a Dividend Payment Date) or the Dividend Payment Date next preceding the date they are issued)) and (ii) end on, but exclude, the next Dividend Payment Date.
Dividends payable on the Series A Preferred Stock in respect of any Dividend Period shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If any Dividend Payment Date is a day that is not a Business Day, then the dividend with respect to that Dividend Payment Date will instead be paid on the immediately succeeding Business Day, without interest or other payment in respect of such delayed payment.
The applicable dividend rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date. Promptly upon such determination, the Calculation Agent shall notify the Corporation of the dividend rate for the Reset Period. The Calculation Agent’s determination of any dividend rate, and its calculation of the amount of dividends for any Dividend Period beginning on or after the First Call Date will be (i) on file at the Corporation’s principal offices, (ii) made available to any holder of Series A Preferred Stock upon request and (iii) final and binding in the absence of manifest error.
Holders of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series A Preferred Stock as specified in this Section 5 (subject to the other provisions of this Certificate of Designations).
(b) Priority Dividends. So long as any shares of Series A Preferred Stock remain outstanding for any Dividend Period, unless the full dividends for the latest completed Dividend Period on all outstanding shares of Series A Preferred Stock have been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside), during a Dividend Period:
(i) no dividend shall be declared or paid on the Common Stock or any other shares of Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series A Preferred Stock as described below), other than:
(A) any dividend paid on Junior Stock or Parity Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock or (solely in the case of Parity Stock) other Parity Stock; or
(B) any dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of rights, stock or other property under such plan, or the redemption or repurchase of any rights under such plan; and
(ii) no Common Stock or other Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series A Preferred Stock as described below) shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than:
(A) as a result of a reclassification of Junior Stock for or into other Junior Stock or a reclassification of Parity Stock for or into other Parity Stock, as applicable,
(B) the exchange, redemption or conversion of one share of Junior Stock for or into another share of Junior Stock or the exchange, redemption or conversion of one share of Parity stock for or into another share of Parity Stock, as applicable,
(C) purchases, redemptions or other acquisitions of shares of Junior Stock or Parity Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or stockholder stock purchase plan, or (z) the satisfaction of the Corporation’s obligations pursuant to any contract relating to the foregoing clauses (x) or (y) outstanding at the beginning of the applicable Dividend Period requiring such purchase, redemption or other acquisition,
(D) the purchase of fractional interests in shares of Junior Stock or Parity Stock, as the case may be, pursuant to the conversion or exchange provisions of such securities or the security being converted or exchanged,
(E) through the use of the proceeds of a substantially contemporaneous sale of Junior Stock or Parity Stock, as applicable, or
(F) in the case of Parity Stock, pro rata purchases, offers or other acquisitions for consideration by the Corporation to purchase all, or a pro rata portion of, the Series A Preferred Stock and such Parity Stock.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside) in full on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend Period) on the Series A Preferred Stock and any shares of Parity Stock, all dividends declared on the Series A Preferred Stock and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as all accrued but unpaid dividends per share on the Series A Preferred Stock and all Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) bear to each other. As used in this paragraph, payment of dividends “in full” means, as to any Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a Dividend Period with respect to the Series A Preferred Stock or any shares of Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series, as applicable (in either case, a “second series”), then, for purposes of this paragraph, the Board (or a duly authorized committee of the Board) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Parity Stock and Dividend Period(s) with respect to the Series A Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Parity Stock and the Series A Preferred Stock.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board (or a duly authorized committee of the Board) may be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, and the Series A Preferred Stock shall not be entitled to participate in any such dividend.
Dividends on the Series A Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series A Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to stockholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series A Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $25,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends.
Holders of the Series A Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series A Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series A Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series A Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series A Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series A Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series A Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption.
(a) Optional Redemption. The Series A Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of Series A Preferred Stock at the time outstanding upon notice given as provided in Section 7(c) below:
(i) in whole or in part, from time to time, on or after the First Call Date, at a redemption price equal to the stated amount of $25,000 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date,
(ii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to $25,500 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series A Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date, or
(iii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Regulatory Capital Event, at a redemption price equal to the stated amount of $25,000 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series A Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date.
The redemption price for any shares of Series A Preferred Stock shall be payable on the Redemption Date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a Redemption Date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not constitute a part of or be paid to the holder entitled to receive the redemption price on the Redemption Date, but rather shall be paid to the holder of record of the redeemed shares on the Dividend Record Date relating to such Dividend Payment Date as provided in Section 5 above. Holders of the Series A Preferred Stock will have no right to require the redemption or repurchase of the Series A Preferred Stock.
(b) No Sinking Fund. The Series A Preferred Stock will not be subject to any mandatory redemption, sinking fund, retirement fund, purchase fund or other similar provisions.
(c) Notice of Redemption. Notice of every redemption of shares of Series A Preferred Stock shall be given by first-class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be not less than 30 days and not more than 60 days prior to the date fixed for redemption thereof. Any notice mailed as provided in this Section 7(c) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series A Preferred Stock. Notwithstanding the foregoing, if the Series A Preferred Stock is held in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of Series A Preferred Stock at such time and in any manner permitted by such facility.
Each such notice given to a holder shall state: (i) the Redemption Date; (ii) the number of shares of Series A Preferred Stock to be redeemed and, if less than all the shares of Series A Preferred Stock held by such holder are to be redeemed, the number of shares of such Series A Preferred Stock to be redeemed from such holder (if determinable at the time of such notice); (iii) the redemption price; (iv) if shares of Series A Preferred Stock are evidenced by definitive certificates, the place or places where holders may surrender certificates evidencing those shares of Series A Preferred Stock for payment of the redemption price; and (v) that dividends will not accrue for any period beginning on or after the Redemption Date.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series A Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro rata, by lot or by such other method in accordance with the procedures of DTC. Subject to the provisions hereof, the Corporation shall have full power and authority to prescribe the terms and conditions upon which shares of Series A Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the Redemption Date specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the Redemption Date (i) dividends shall not accrue on all shares so called for redemption for any period beginning on or after the Redemption Date, (ii) all shares so called for redemption shall no longer be deemed outstanding and (iii) all rights with respect to such shares shall forthwith on such Redemption Date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Any funds unclaimed at the end of two years from the Redemption Date, to the extent permitted by law, shall be released from the trust so established and may be commingled with other funds of the Corporation, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
8. Voting Rights.
(a) General. The holders of Series A Preferred Stock shall not have any voting rights except as set forth below or as otherwise from time to time required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of Series A Preferred Stock shall have not been declared and paid for the equivalent of at least six Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares of Series A Preferred Stock, voting together as a single class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board (the “Preferred Stock Directors”), provided that the election of any such directors shall not cause the Corporation to violate the corporate governance requirement of the New York Stock Exchange (the “NYSE”) (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors and provided, further, that the Board shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series A Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), and at each subsequent annual meeting. These voting rights will continue until dividends on the shares of Series A Preferred Stock and any such series of Voting Preferred Stock for at least four consecutive dividend periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following the Nonpayment shall have been fully paid.
If and when dividends for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment have been paid in full, the holders of the Series A Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment) and, if such voting rights for all other holders of Voting Preferred Stock have terminated, the term of office of each Preferred Stock Director so elected shall immediately terminate and the number of directors on the Board shall automatically decrease by two. In determining whether dividends have been paid for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment, the Corporation may take account of any dividend the Corporation elects to pay for such a Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of Series A Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series A Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above, provided that the filling of any such vacancy shall not cause the Corporation to violate the corporate governance requirement of the NYSE (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series A Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of Series A Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Articles of Incorporation, the affirmative vote or consent of the holders of at least 66 2/3% of the shares of Series A Preferred Stock, voting separately as a class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Articles of Incorporation to authorize or increase the authorized amount of, or issue any shares of any class or series or any obligation or securities convertible into shares of any class or series of the Corporation’s capital stock ranking senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation;
(ii) Amendment of Articles of Incorporation, Bylaws or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Articles of Incorporation (including this Certificate of Designations) or the Bylaws that would alter or change the voting powers, preferences, privileges or special rights of the Series A Preferred Stock so as to affect them adversely; provided, however, that the amendment of the Articles of Incorporation so as to increase the amount of authorized or issued Series A Preferred Stock or authorized Common Stock or Preferred Stock, or so as to authorize or create, or to increase the authorized or issued amount of, any class or series of stock that does not rank senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation shall not be deemed to affect adversely the voting powers, preferences, privileges or special rights of the Series A Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (A) a binding share exchange or reclassification involving the Series A Preferred Stock, (B) a merger or consolidation of the Corporation with another entity (whether or not a corporation) or (C) a conversion, transfer, domestication or continuance of the Corporation into another entity or an entity organized under the laws of another jurisdiction, unless, in each case, (x) the shares of Series A Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, or any such conversion, transfer, domestication or continuance, the shares of Series A Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series A Preferred Stock immediately prior to such consummation, taken as a whole.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance described above would materially and adversely affect one or more but not all series of Voting Preferred Stock (including the Series A Preferred Stock for this purpose), then only the series materially and adversely affected and entitled to vote shall vote to the exclusion of all other series of Preferred Stock. If all series of Preferred Stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance, described above, there shall be required a two-thirds approval of each series that will have a diminished status.
(d) Changes for Clarification. To the fullest extent permitted by law, without the consent of the holders of Series A Preferred Stock, so long as such action does not adversely affect the rights, preferences, privileges and voting powers of the Series A Preferred Stock, the Corporation may supplement any terms of the Series A Preferred Stock:
| (i) | to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations that may be defective or inconsistent; or |
| (ii) | to make any provision with respect to matters or questions arising with respect to the Series A Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations. |
(e) Changes After Provisions for Redemption. No vote or consent of the holders of Series A Preferred Stock shall be required pursuant to Sections 8(b) and (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to Sections 8(b) and (c), all outstanding shares of Series A Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been set aside for such redemption, in each case pursuant to Section 7 above, unless in the case of a vote or consent required to authorize stock ranking senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation, if all outstanding shares of Series A Preferred Stock are being redeemed with the proceeds from the sale of such stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of Series A Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board (or a duly authorized committee of the Board), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles of Incorporation, the Bylaws, applicable law and any national securities exchange or other trading facility on which the Series A Preferred Stock is listed or traded at the time. Whether a plurality, majority or other portion of the Series A Preferred Stock and any Voting Preferred Stock has been voted in favor of any matter shall be determined by the Corporation by reference to the respective stated amounts of the shares of the Series A Preferred Stock and Voting Preferred Stock voted or covered by the consent.
9. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent for the Series A Preferred Stock may deem and treat the record holder of any share of Series A Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor such Transfer Agent shall be affected by any notice to the contrary.
10. Notices. All notices or communications in respect of Series A Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first-class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
11. No Conversion Rights. The Series A Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
12. No Preemptive Rights. No share of Series A Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
13. Other Rights. The shares of Series A Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
14. Certificates. The Corporation may, at its option, issue shares of Series A Preferred Stock without certificates. As long as DTC or its nominee is the registered owner of the Series A Preferred Stock, DTC or its nominee, as the case may be, will be considered the sole owner and holder of all shares of Series A Preferred Stock for all purposes under the instruments governing the rights and obligations of holders of shares of Series A Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of Series A Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation will either print and deliver certificates for the shares of Series A Preferred Stock or provide for the direct registration of the Series A Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry- only transfers through DTC (or a successor securities depositary), certificates for the shares of Series A Preferred Stock will be printed and delivered to DTC or the Corporation will provide for the direct registration of the Series A Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series A Preferred Stock:
(a) will not be entitled to have such Series A Preferred Stock registered in their names;
(b) will not receive or be entitled to receive physical delivery of securities certificates in exchange for beneficial interests in the Series A Preferred Stock; and
(c) will not be considered to be owners or holders of the shares of Series A Preferred Stock for any purpose under the instruments governing the rights and obligations of holders of shares of Series A Preferred Stock.
EXHIBIT B
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B” (the “Series B Preferred Stock”). Each share of Series B Preferred Stock shall be identical in all respects to every other share of Series B Preferred Stock, except as to the respective dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted pursuant to Section 5(a) below.
2. Number of Shares. The authorized number of shares of Series B Preferred Stock shall be 12,000. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series B Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series B Preferred Stock, issue additional shares of Series B Preferred Stock that shall form a single series with the Series B Preferred Stock initially authorized hereby, provided that such additional shares of Series B Preferred Stock are fungible for U.S. federal income tax purposes with the Series B Preferred Stock authorized hereby. Shares of Series B Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series B Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Business Day” means any day other than (i) a Saturday or Sunday or a legal holiday or (ii) a day on which federal or state banking institutions in the Borough of Manhattan, The City of New York, are authorized or obligated by law, executive order or regulation to close.
(d) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(e) “Calculation Agent” means, at any time, the person or entity appointed by the Corporation and serving as such agent with respect to the Series B Preferred Stock at such time.
(f) “Certificate of Designations” has the meaning specified in the preamble.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(h) “Dividend Payment Date” has the meaning specified in Section 5(a).
(i) “Dividend Period” has the meaning specified in Section 5(a).
(j) “Dividend Record Date” has the meaning specified in Section 5(a).
(k) “DTC” means The Depository Trust Company.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(m) “First Call Date” means September 1, 2025.
(n) “first series” has the meaning specified in Section 5(b).
(o) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the weekly average yield to maturity for U.S. Treasury securities with a maturity of five years from the next Reset Date and trading in the public securities markets or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date, and (B) the other maturity as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Dividend Determination Date.
(p) “H.15” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System and “most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
(q) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series B Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(r) “Liquidation Preference” has the meaning specified in Section 6(b).
(s) “Parity Stock” means the Series A Preferred Stock and any other class or series of the Corporation’s stock that ranks equally with the Series B Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(t) “person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
(u) “Preferred Stock” means any and all series of preferred stock, having any par value per share, of the Corporation, including the Series B Preferred Stock.
(v) “Preferred Stock Directors” has the meaning specified in Section 8(b).
(w) “Rating Agency Event” means any nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) of the Exchange Act), that then publishes a rating for the Corporation (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Series B Preferred Stock, which amendment, clarification or change results in:
(i) the shortening of the length of time the Series B Preferred Stock is assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial issuance of the Series B Preferred Stock; or
(ii) the lowering of the equity credit (including up to a lesser amount) assigned to the Series B Preferred Stock by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the initial issuance of the Series B Preferred Stock.
(x) “Registrar” means the registrar with respect to the Series B Preferred Stock, which shall initially be Computershare Trust Company, N.A., and its successors, including any successor appointed by the Corporation.
(y) “Regulatory Capital Event” means that the Corporation becomes subject to capital adequacy supervision by a capital regulator and the capital adequacy guidelines that apply to the Corporation as a result of being so subject set forth criteria pursuant to which the liquidation preference amount of the Series B Preferred Stock would not qualify as capital under such capital adequacy guidelines, as the Corporation may determine at any time, in its sole discretion.
(z) “Reset Date” means the First Call Date and each date falling on the fifth anniversary of the preceding Reset Date.
(aa) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of such Reset Period.
(bb) “Reset Period” means the period from, and including, the First Call Date to, but excluding, the next following Reset Date and thereafter each period from, and including, each Reset Date to, but excluding, the next following Reset Date.
(cc) “second series” shall have the meaning specified in Section 5(b).
(dd) “Securities Act” means the Securities Act of 1933, as amended.
(ee) “Series A Preferred Stock” means the Corporation’s 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A.
(ff) “Transfer Agent” means the transfer agent with respect to the Series B Preferred Stock, which shall initially be Computershare Trust Company, N.A., and its successors, including any successor appointed by the Corporation.
(gg) “Voting Preferred Stock” means, with regard to any matter as to which the holders of Series B Preferred Stock are entitled to vote as specified in Section 8 of this Certificate of Designations, any other class or series of preferred stock of the Corporation ranking equally with the Series B Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which like voting rights have been conferred and are exercisable with respect to such matter.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series B Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with the Series A Preferred Stock and each other series of Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least 66 2/3% of the shares of the Series B Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends.
(a) Rate. Dividends on the Series B Preferred Stock will not be mandatory. Holders of Series B Preferred Stock will be entitled to receive, when, as and if declared by the Board (or a duly authorized committee of the Board), out of funds legally available for the payment of dividends, under Iowa law, quarterly in arrears on the first day of March, June, September and December of each year, commencing on December 1, 2020 (each such date, a “Dividend Payment Date”), non-cumulative cash dividends that accrue for the relevant Dividend Period as follows:
(i) from the date of original issue, to, but excluding, the First Call Date at a fixed rate per annum of 6.625% on the stated amount of $25,000 per share; and
(ii) from the First Call Date, during each Reset Period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Dividend Determination Date plus 6.297% on the stated amount of $25,000 per share.
If the Corporation issues additional shares of Series B Preferred Stock after the original issue date, dividends on such shares will accrue from the original issue date if such shares are issued prior to the first Dividend Payment Date. Dividends on Series B Preferred Stock issued after the first Dividend Payment Date will accrue from either the date on which such shares are issued (if such shares are issued on a Dividend Payment Date) or the Dividend Payment Date next preceding the date such shares are issued (if such shares are not issued on a Dividend Payment Date).
Dividends on the Series B Preferred Stock shall not be cumulative. Accordingly, if the Board (or a duly authorized committee of the Board) does not declare a dividend on the Series B Preferred Stock payable in respect of any Dividend Period before the related Dividend Payment Date, (i) such dividend will not accrue, (ii) the Corporation will have no obligation to pay a dividend for that Dividend Period on the Dividend Payment Date or at any future time, whether or not dividends on the Series B Preferred Stock are declared for any future Dividend Period and (iii) no interest, or sum of money in lieu of interest, will be payable in respect of any dividend not so declared.
Dividends, if so declared, that are payable on the Series B Preferred Stock on any Dividend Payment Date will be payable to holders of record of the Series B Preferred Stock as they appear on the books of the Corporation on the applicable record date, which shall be the 15th calendar day before such Dividend Payment Date or such other record date fixed by the Board (or a duly authorized committee of the Board) that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall (i) commence on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on, and include, the original issue date of the Series B Preferred Stock (provided that for any share of Series B Preferred Stock issued after the original issue date of the Series B Preferred Stock, the initial Dividend Period for such shares may commence on and include the original issue date of the Series B Preferred Stock if such shares are issued prior to the first Dividend Payment Date or otherwise will commence on and include the date on which such shares are issued (if it is a Dividend Payment Date) or the Dividend Payment Date next preceding the date they are issued)) and (ii) end on, but exclude, the next Dividend Payment Date.
Dividends payable on the Series B Preferred Stock in respect of any Dividend Period shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If any Dividend Payment Date is a day that is not a Business Day, then the dividend with respect to that Dividend Payment Date will instead be paid on the immediately succeeding Business Day, without interest or other payment in respect of such delayed payment.
The applicable dividend rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date. Promptly upon such determination, the Calculation Agent shall notify the Corporation of the dividend rate for the Reset Period. The Calculation Agent’s determination of any dividend rate, and its calculation of the amount of dividends for any Dividend Period beginning on or after the First Call Date will be (i) on file at the Corporation’s principal offices, (ii) made available to any holder of Series B Preferred Stock upon request and (iii) final and binding in the absence of manifest error.
Holders of Series B Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series B Preferred Stock as specified in this Section 5 (subject to the other provisions of this Certificate of Designations).
(b) Priority Dividends. So long as any shares of Series B Preferred Stock remain outstanding for any Dividend Period, unless the full dividends for the latest completed Dividend Period on all outstanding shares of Series B Preferred Stock have been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside), during a Dividend Period:
(i) no dividend shall be declared or paid on the Common Stock or any other shares of Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series B Preferred Stock as described below), other than:
| (A) | any dividend paid on Junior Stock or Parity Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock or (solely in the case of Parity Stock) other Parity Stock; or |
| (B) | any dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of rights, stock or other property under such plan, or the redemption or repurchase of any rights under such plan; and |
(ii) no Common Stock or other Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series B Preferred Stock as described below) shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than:
| (A) | as a result of a reclassification of Junior Stock for or into other Junior Stock or a reclassification of Parity Stock for or into other Parity Stock, as applicable, |
| (B) | the exchange, redemption or conversion of one share of Junior Stock for or into another share of Junior Stock or the exchange, redemption or conversion of one share of Parity stock for or into another share of Parity Stock, as applicable, |
| (C) | purchases, redemptions or other acquisitions of shares of Junior Stock or Parity Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or shareholder stock purchase plan, or (z) the satisfaction of the Corporation’s obligations pursuant to any contract relating to the foregoing clauses (x) or (y) outstanding at the beginning of the applicable Dividend Period requiring such purchase, redemption or other acquisition, |
| (D) | the purchase of fractional interests in shares of Junior Stock or Parity Stock, as the case may be, pursuant to the conversion or exchange provisions of such securities or the security being converted or exchanged, |
| (E) | through the use of the proceeds of a substantially contemporaneous sale of Junior Stock or Parity Stock, as applicable, or |
| (F) | in the case of Parity Stock, pro rata purchases, offers or other acquisitions for consideration by the Corporation to purchase all, or a pro rata portion of, the Series B Preferred Stock and such Parity Stock. |
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside) in full on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend Period) on the Series B Preferred Stock and any shares of Parity Stock, all dividends declared on the Series B Preferred Stock and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as all accrued but unpaid dividends per share on the Series B Preferred Stock and all Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) bear to each other. As used in this paragraph, payment of dividends “in full” means, as to any Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a Dividend Period with respect to the Series B Preferred Stock or any shares of Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series, as applicable (in either case, a “second series”), then, for purposes of this paragraph, the Board (or a duly authorized committee of the Board) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Parity Stock and Dividend Period(s) with respect to the Series B Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Parity Stock and the Series B Preferred Stock.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board (or a duly authorized committee of the Board) may be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, and the Series B Preferred Stock shall not be entitled to participate in any such dividend.
Dividends on the Series B Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series B Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to shareholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series B Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $25,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends. Holders of the Series B Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series B Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series B Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series B Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series B Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series B Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series B Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption.
(a) Optional Redemption. The Series B Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of Series B Preferred Stock at the time outstanding upon notice given as provided in Section 7(c) below:
(i) in whole or in part, from time to time, on or after the First Call Date, at a redemption price equal to the stated amount of $25,000 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date,
(ii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to $25,500 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series B Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date, or
(iii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Regulatory Capital Event, at a redemption price equal to the stated amount of $25,000 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series B Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date.
The redemption price for any shares of Series B Preferred Stock shall be payable on the Redemption Date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a Redemption Date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not constitute a part of or be paid to the holder entitled to receive the redemption price on the Redemption Date, but rather shall be paid to the holder of record of the redeemed shares on the Dividend Record Date relating to such Dividend Payment Date as provided in Section 5 above. Holders of the Series B Preferred Stock will have no right to require the redemption or repurchase of the Series B Preferred Stock.
(b) No Sinking Fund. The Series B Preferred Stock will not be subject to any mandatory redemption, sinking fund, retirement fund, purchase fund or other similar provisions.
(c) Notice of Redemption. Notice of every redemption of shares of Series B Preferred Stock shall be given by first-class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be not less than 30 days and not more than 60 days prior to the date fixed for redemption thereof. Any notice mailed as provided in this Section 7(c) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series B Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series B Preferred Stock. Notwithstanding the foregoing, if the Series B Preferred Stock is held in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of Series B Preferred Stock at such time and in any manner permitted by such facility.
Each such notice given to a holder shall state: (i) the Redemption Date; (ii) the number of shares of Series B Preferred Stock to be redeemed and, if less than all the shares of Series B Preferred Stock held by such holder are to be redeemed, the number of shares of such Series B Preferred Stock to be redeemed from such holder (if determinable at the time of such notice); (iii) the redemption price; (iv) if shares of Series B Preferred Stock are evidenced by definitive certificates, the place or places where holders may surrender certificates evidencing those shares of Series B Preferred Stock for payment of the redemption price; and (v) that dividends will not accrue for any period beginning on or after the Redemption Date.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series B Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro rata, by lot or by such other method in accordance with the procedures of DTC. Subject to the provisions hereof, the Corporation shall have full power and authority to prescribe the terms and conditions upon which shares of Series B Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the Redemption Date specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the Redemption Date (i) dividends shall not accrue on all shares so called for redemption for any period beginning on or after the Redemption Date, (ii) all shares so called for redemption shall no longer be deemed outstanding and (iii) all rights with respect to such shares shall forthwith on such Redemption Date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Any funds unclaimed at the end of two years from the Redemption Date, to the extent permitted by law, shall be released from the trust so established and may be commingled with other funds of the Corporation, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
8. Voting Rights.
(a) General. The holders of Series B Preferred Stock shall not have any voting rights except as set forth below or as otherwise from time to time required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of Series B Preferred Stock shall have not been declared and paid for the equivalent of at least six Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares of Series B Preferred Stock, voting together as a single class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board (the “Preferred Stock Directors”), provided that the election of any such directors shall not cause the Corporation to violate the corporate governance requirement of the New York Stock Exchange (the “NYSE”) (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors and provided, further, that the Board shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special meeting of shareholders), and at each subsequent annual meeting. These voting rights will continue until dividends on the shares of Series B Preferred Stock and any such series of Voting Preferred Stock for at least four consecutive dividend periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following the Nonpayment shall have been fully paid.
If and when dividends for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment have been paid in full, the holders of the Series B Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment) and, if such voting rights for all other holders of Voting Preferred Stock have terminated, the term of office of each Preferred Stock Director so elected shall immediately terminate and the number of directors on the Board shall automatically decrease by two. In determining whether dividends have been paid for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment, the Corporation may take account of any dividend the Corporation elects to pay for such a Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of Series B Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series B Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above, provided that the filling of any such vacancy shall not cause the Corporation to violate the corporate governance requirement of the NYSE (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special meeting of shareholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of Series B Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the affirmative vote or consent of the holders of at least 66 2/3% of the shares of Series B Preferred Stock, voting separately as a class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Articles of Incorporation to authorize or increase the authorized amount of, or issue any shares of any class or series or any obligation or securities convertible into shares of any class or series of the Corporation’s capital stock ranking senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation;
(ii) Amendment of Articles of Incorporation, Bylaws or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Articles of Incorporation (including this Certificate of Designations) or the Bylaws that would alter or change the voting powers, preferences, privileges or special rights of the Series B Preferred Stock so as to affect them adversely; provided, however, that the amendment of the Articles of Incorporation so as to increase the amount of authorized or issued Series B Preferred Stock or authorized Common Stock or Preferred Stock, or so as to authorize or create, or to increase the authorized or issued amount of, any class or series of stock that does not rank senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation shall not be deemed to affect adversely the voting powers, preferences, privileges or special rights of the Series B Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (A) a binding share exchange or reclassification involving the Series B Preferred Stock, (B) a merger or consolidation of the Corporation with another entity (whether or not a corporation) or (C) a conversion, transfer, domestication or continuance of the Corporation into another entity or an entity organized under the laws of another jurisdiction, unless, in each case, (x) the shares of Series B Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, or any such conversion, transfer, domestication or continuance, the shares of Series B Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series B Preferred Stock immediately prior to such consummation, taken as a whole.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance described above would materially and adversely affect one or more but not all series of Voting Preferred Stock (including the Series B Preferred Stock for this purpose), then only the series materially and adversely affected and entitled to vote shall vote to the exclusion of all other series of Preferred Stock. If all series of Preferred Stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance, described above, there shall be required a two-thirds approval of each series that will have a diminished status.
(d) Changes for Clarification. To the fullest extent permitted by law, without the consent of the holders of Series B Preferred Stock, so long as such action does not adversely affect the rights, preferences, privileges and voting powers of the Series B Preferred Stock, the Corporation may supplement any terms of the Series B Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the Series B Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes After Provisions for Redemption. No vote or consent of the holders of Series B Preferred Stock shall be required pursuant to Sections 8(b) and (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to Sections 8(b) and (c), all outstanding shares of Series B Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been set aside for such redemption, in each case pursuant to Section 7 above, unless in the case of a vote or consent required to authorize stock ranking senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation, if all outstanding shares of Series B Preferred Stock are being redeemed with the proceeds from the sale of such stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of Series B Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board (or a duly authorized committee of the Board), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles of Incorporation, the Bylaws, applicable law and any national securities exchange or other trading facility on which the Series B Preferred Stock is listed or traded at the time. Whether a plurality, majority or other portion of the Series B Preferred Stock and any Voting Preferred Stock has been voted in favor of any matter shall be determined by the Corporation by reference to the respective stated amounts of the shares of the Series B Preferred Stock and Voting Preferred Stock voted or covered by the consent.
9. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent for the Series B Preferred Stock may deem and treat the record holder of any share of Series B Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor such Transfer Agent shall be affected by any notice to the contrary.
10. Notices. All notices or communications in respect of Series B Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first-class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
11. No Conversion Rights. The Series B Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
12. No Preemptive Rights. No share of Series B Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
13. Other Rights. The shares of Series B Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
14. Certificates. The Corporation may, at its option, issue shares of Series B Preferred Stock without certificates. As long as DTC or its nominee is the registered owner of the Series B Preferred Stock, DTC or its nominee, as the case may be, will be considered the sole owner and holder of all shares of Series B Preferred Stock for all purposes under the instruments governing the rights and obligations of holders of shares of Series B Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of Series B Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation will either print and deliver certificates for the shares of Series B Preferred Stock or provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry- only transfers through DTC (or a successor securities depositary), certificates for the shares of Series B Preferred Stock will be printed and delivered to DTC or the Corporation will provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series B Preferred Stock:
(a) will not be entitled to have such Series B Preferred Stock registered in their names;
(b) will not receive or be entitled to receive physical delivery of securities certificates in exchange for beneficial interests in the Series B Preferred Stock; and
(c) will not be considered to be owners or holders of the shares of Series B Preferred Stock for any purpose under the instruments governing the rights and obligations of holders of shares of Series B Preferred Stock.
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
OF
SERIES C PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “Preferred Stock, Series C” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “Preferred Stock, Series C” (the “Series C Preferred Stock”). Each share of Series C Preferred Stock shall be identical in all respects to every other share of Series C Preferred Stock.
2. Number of Shares. The authorized number of shares of Series C Preferred Stock shall be 1,877,500. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series C Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series C Preferred Stock, issue additional shares of Series C Preferred Stock that shall form a single series with the Series C Preferred Stock initially authorized hereby, provided that such additional shares of Series C Preferred Stock are fungible for U.S. federal income tax purposes with the Series C Preferred Stock authorized hereby. Shares of Series C Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series C Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(d) “Certificate of Designations” has the meaning specified in the preamble.
(e) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(f) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series C Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(g) “Liquidation Preference” has the meaning specified in Section 6(b).
(h) “Parity Stock” means the Series A Preferred Stock, Series B Preferred Stock and any other class or series of the Corporation’s stock that ranks equally with the Series C Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(i) “Series A Preferred Stock” means the Corporation’s 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A.
(j) “Series B Preferred Stock” means the Corporation’s 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series C Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with any Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least 66 2/3% of the shares of the Series C Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends. Dividends on the Series C Preferred Stock will not be mandatory. Holders of shares of Series C Preferred Stock shall be entitled to receive such dividends and other distributions (payable in cash or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
If any dividends (payable in cash, property, stock or otherwise) are determined by the Board (or a duly authorized committee of the Board) to be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, the Series C Preferred Stock shall be entitled to participate in any such dividend.
Dividends on the Series C Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series C Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to stockholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series C Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $1,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends. Holders of the Series C Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series C Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series C Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series C Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series C Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series C Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series C Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption. The Series C Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem all, or a portion of, the shares of Series C Preferred Stock then outstanding, at any time, at a redemption price equal to the stated amount of $1,000 per share of Series C Preferred Stock. Upon such redemption, (a) all shares so called for redemption shall no longer be deemed outstanding and (b) all rights with respect to such shares shall forthwith on the date of such redemption cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Holders of the shares of Series C Preferred Stock will have no right to require the redemption or repurchase of the shares of Series C Preferred Stock. No redemption of the shares of Series C Preferred Stock will be consummated unless the full dividend has been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside) on all outstanding shares of Parity Stock for the latest completed dividend period for such shares of Parity Stock.
8. Voting Rights. The holders of Series C Preferred Stock shall not have any voting rights except as otherwise from time to time required by law.
9. Notices. All notices or communications in respect of Series C Preferred Stock shall be sufficiently given if given in writing or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
10. Conversion Rights. The Series C Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
11. No Preemptive Rights. No share of Series C Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
12. Other Rights. The shares of Series C Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
13. Certificates. The Corporation may, at its option, issue shares of Series C Preferred Stock without certificates.
EXHIBIT B
Bylaws
[Attached.]
BYLAWS
OF
AMERICAN NATIONAL GROUP INC.
(a Delaware Corporation)
(hereinafter referred to as the “Corporation”)
ARTICLE I
MEETING OF Stockholders; STOCKHOLDERS’ CONSENT IN LIEU OF MEETING
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders for the election of directors, and for the transaction of such other business as may properly come before the meeting, shall be held at such place, date and hour as shall be fixed by the Board of Directors and designated in the notice or waiver of notice thereof; except that no annual meeting need be held if all actions, including the election of directors, required by the General Corporation Law of the State of Delaware to be taken at a stockholders’ annual meeting are taken by written consent in lieu of a meeting pursuant to Section 1.03 of these Bylaws.
SECTION 1.02. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation or a stockholder or stockholders holding of record at least a majority of the shares of common stock, par value $0.01 per share, of the Corporation (“Common Stock”) issued and outstanding, such meeting to be held at such place, date and hour as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Stockholders’ Consent in Lieu of Meeting. Any action required by the General Corporation Law of the State of Delaware to be taken at any annual or special meeting of the stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all the stockholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall be requisite for and shall constitute a quorum for the transaction of business at all meetings of stockholders. If, however, such a quorum shall not be present in person or represented by proxy at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting.
| 2 |
SECTION 1.05. Majority Vote Required. When a quorum is present at any meeting of stockholders, the affirmative vote of the majority of the aggregate voting power of the shares of stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall constitute the act of the stockholders, unless by express provision of law, the Certificate of Incorporation of the Corporation or these Bylaws a different vote is required, in which case such express provision shall govern and control.
SECTION 1.06. Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed, as provided in Section 6.07 of these Bylaws, for the determination of stockholders entitled to vote at such meeting. No election of directors need be by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the Corporation shall be vested in the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation of the Corporation directed or required to be exercised or done by the stockholders. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific circumstance.
SECTION 2.02. Number and Term of Office. The number of directors which shall constitute the whole Board of Directors shall consist of one to ten individuals, the exact number of directors to be determined from time to time by the stockholders of the Corporation. The term “whole Board of Directors” is used herein to refer to the total number of directors which the Corporation would have if there were no vacancies. Directors need not be stockholders. No director is required to be an officer or employee of the Corporation or a resident of the State of Delaware. Each director shall hold office until his or her successor is elected and qualified, or until his or her earlier death or resignation or removal in the manner hereinafter provided.
| 3 |
SECTION 2.03. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time is not specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Any director or the entire Board of Directors may be removed, with or without cause, at any time by the holders of a majority of the shares of stock then entitled to vote at an election of directors or by written consent of the stockholders pursuant to Section 1.03 of these Bylaws.
Vacancies in the Board of Directors and newly created directorships resulting from any increase in the authorized number of directors may be filled by (a) a majority of the directors then in office, although less than a quorum, (b) a sole remaining director or (c) written consent of the stockholders pursuant to Section 1.03 of these Bylaws.
SECTION 2.04. Chairman of the Board of Directors. If there shall be a Chairman of the Board of Directors, he or she shall preside at meetings of the Board of Directors and of the stockholders at which he or she is present, and shall give counsel and advice to the Board of Directors and the officers of the Corporation on all subjects touching the welfare of the Corporation and the conduct of its business. He or she shall perform such other duties as the Board of Directors may from time to time determine. Except as otherwise provided by resolution of the Board of Directors he or she shall be ex officio a member of all committees of the Board of Directors.
SECTION 2.05. Meetings. (a) Annual Meeting. As soon as practicable after each annual election of directors, the Board of Directors shall meet for the purpose of organization and the transaction of other business, unless it shall have transacted all such business by written consent pursuant to Section 2.06 of these Bylaws.
(b) Other Meetings. Other meetings of the Board of Directors shall be held at such times and places as the Board of Directors, the Chairman of the Board of Directors or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary of the Corporation shall give notice to each director of each meeting, including the time, place and purpose of such meeting. Notice of each such meeting shall be mailed to each director, addressed to him or her at his or her residence or usual place of business, at least two days before the day on which such meeting is to be held, or shall be sent to him or her at such place by telegraph, cable, wireless or other form of recorded communication, or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held, but notice need not be given to any director who shall attend such meeting. A written waiver of notice, signed by the person entitled thereto, whether before or after the time of the meeting stated therein, shall be deemed equivalent to notice.
| 4 |
(d) Place of Meetings. The Board of Directors may hold its meetings at such place or places within or without the State of Delaware as the Board of Directors may from time to time determine, or as shall be designated in the respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One third of the total number of directors then in office (but not less than one) shall be present in person at any meeting of the Board of Directors in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board of Directors, except as otherwise expressly required by law or these Bylaws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board of Directors, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
(i) the Chairman of the Board of Directors;
(ii) the President (if the President shall be a member of the Board of Directors at such time); and
(iii) any director chosen by a majority of the directors present.
The Secretary of the Corporation or, in the case of his or her absence, any person (who shall be an Assistant Secretary of the Corporation, if an Assistant Secretary of the Corporation is present) whom the Chairman of the Board of Directors shall appoint shall act as secretary of such meeting and keep the minutes thereof.
SECTION 2.06. Directors’ Consent in Lieu of Meeting. Action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes or the proceedings of the Board of Directors or committee.
| 5 |
SECTION 2.07. Action by Means of Conference Telephone or Similar Communications Equipment. Any one or more members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or any such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
ARTICLE III
Committees of the Board
SECTION 3.01. The Board of Directors, by the affirmative vote of a majority of the whole Board of Directors, may establish one or more other committees, including an executive committee, each committee to consist of one or more persons, who need not be directors, appointed by the Board of Directors. Each such committee shall have the authority and duties delegated to it by the Board of Directors, subject to any limitations set forth in any then-established committee such as an executive committee. The Board of Directors shall have power at any time to change the members of any such committee, designate alternate members of any such committee and fill vacancies therein; and any such committee shall serve at the pleasure of the Board of Directors. Each such committee shall fix its own rules governing the conduct of its activities except as the Board of Directors may require or restrict or to the extent required or restricted by the terms of any then-established committee such as an executive committee.
ARTICLE IV
Officers
SECTION 4.01. Executive Officers. The executive officers of the Corporation shall be a President, a Secretary and a Chief Financial Officer and may include a Chairman of the Board of Directors, one or more Vice Presidents and one or more Assistant Secretaries or Assistant Chief Financial Officers. The Board of Directors may also elect or appoint such other officers and agents as may from time to time appear to be necessary or advisable in the conduct of the affairs of the Corporation. Any two or more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or, to the extent not so provided, by the Board of Directors.
| 6 |
SECTION 4.03. Term of Office, Resignation and Removal. All officers shall be elected or appointed by the Board of Directors and shall hold office for such term as may be prescribed by the Board of Directors. The Chairman of the Board of Directors, if any, shall be elected or appointed from among the members of the Board of Directors. Each officer shall hold office until his or her successor has been elected or appointed and qualified or his or her earlier death or resignation or removal in the manner hereinafter provided. The Board of Directors may require any officer to give security for the faithful performance of his or her duties.
Any officer may resign at any time by giving written notice to the President or the Secretary of the Corporation, and such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, at the time it is accepted by action of the Board of Directors. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of Directors shall be subject to removal at any time by the Board of Directors with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason, the Board of Directors shall fill such vacancy. Any officer so appointed or elected by the Board of Directors shall serve only until such time as the unexpired term of his or her predecessor shall have expired unless reelected or reappointed by the Board of Directors.
SECTION 4.05. The President. The President shall be the Chief Executive Officer of the Corporation and, unless the Chairman of the Board of Directors is present or the Board of Directors has provided otherwise by resolution, he or she shall preside at all meetings of the Board of Directors and the stockholders at which he or she is present except, in the case of a meeting of the Board of Directors, if the President is not a member of the Board of Directors at such time. He or she shall have general and active management and control of the business and affairs of the Corporation subject to the control of the Board of Directors and the Executive Committee, if any, and shall see that all orders and resolutions of the Board of Directors and the Executive Committee, if any, are carried into effect.
SECTION 4.06. Vice Presidents. The Vice President of the Corporation, if any, or if there be more than one, the Vice Presidents in the order of their seniority or in any other order determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President, and shall generally assist the President and perform such other duties as the Board of Directors or the President shall prescribe.
| 7 |
SECTION 4.07. The Secretary. The Secretary of the Corporation shall, to the extent practicable, attend all meetings of the Board of Directors and all meetings of the stockholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President, under whose supervision he or she shall perform such duties. He or she shall keep in safe custody the seal of the Corporation and affix the same to any duly authorized instrument requiring it and, when so affixed, it shall be attested by his or her signature or by the signature of the Chief Financial Officer or an Assistant Secretary or Assistant Chief Financial Officer. He or she shall keep in safe custody the certificate books and stockholder records and such other books and records as the Board of Directors may direct and shall perform all other duties as from time to time may be assigned to him or her by the Chairman of the Board of Directors, the President or the Board of Directors.
SECTION 4.08. Assistant Secretaries. The Assistant Secretary of the Corporation, if any, or if there be more than one, the Assistant Secretaries in order of their seniority or in any other order determined by the Board of Directors shall, in the absence or disability of the Secretary of the Corporation, perform the duties and exercise the powers of the Secretary of the Corporation and shall perform such other duties as the Board of Directors or the Secretary of the Corporation shall prescribe.
SECTION 4.09. The Chief Financial Officer. The Chief Financial Officer shall have the care and custody of the corporate funds and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all moneys and other valuable effects to the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and directors, at the regular meetings of the Board of Directors, or whenever they may require it, an account of all his or her transactions as Chief Financial Officer and of the financial condition of the Corporation; and, in general, perform all the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him or her by the President or the Board of Directors.
| 8 |
SECTION 4.10. Assistant Chief Financial Officers. The Assistant Chief Financial Officer of the Corporation, if any, or if there be more than one, the Assistant Chief Financial Officers in the order of their seniority or in any other order determined by the Board of Directors, shall in the absence or disability of the Chief Financial Officer perform the duties and exercise the powers of the Chief Financial Officer and shall perform such other duties as the Board of Directors or the Chief Financial Officer shall prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation, and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation; and, unless so designated or expressly authorized by these Bylaws, no officer or agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors or Chief Financial Officer or any other officer of the Corporation to whom power in this respect shall have been given by the Board of Directors shall select.
SECTION 5.03. Proxies in Respect of Stock or Other Securities of Other Corporations. The Board of Directors shall designate the officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities in any other corporation, and to vote or consent in respect of such stock or securities; such designated officers may instruct the person or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights.
| 9 |
ARTICLE VI
CAPITAL STOCK
SECTION 6.01. Certificates for Shares of Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number and class of shares owned by him or her in the stock of the Corporation, which shall otherwise be in such form as shall be prescribed by the Board of Directors. Certificates of each class shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by, or in the name of the Corporation by the Chairman of the Board of Directors, the President or a Vice President and by the Chief Financial Officer or an Assistant Chief Financial Officer or the Secretary or an Assistant Secretary of the Corporation.
SECTION 6.02. Record. A record (herein called the “Stock Record”) in one or more counterparts shall be kept of the name of the person, firm or corporation owning the shares of stock represented by each certificate for stock of the Corporation issued, the number of shares of stock represented by each such certificate, the date thereof and, in the case of cancelation, the date of cancelation. Except as otherwise expressly required by law, the person, firm or corporation in whose name shares of stock stand on the Stock Record of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
SECTION 6.03. Registration of Stock. Registration of transfers of shares of stock of the Corporation shall be made only on the books of the Corporation upon request of the registered holder thereof, or of his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and upon the surrender of the certificate or certificates for such shares of stock properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to him or her, and, if any stockholder shall fail to designate such address, corporate notices may be served upon him or her by mail directed to him or her at his or her post office address, if any, as the same appears on the stock record books of the Corporation or at his or her last known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board of Directors or a committee designated thereby with power so to act may, in its discretion, cause to be issued a new certificate or certificates for stock of the Corporation in place of any certificate issued by it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated certificates or, in the case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and the Board of Directors or such committee may, in its discretion, require the owner of the lost or destroyed certificate or his or her legal representative to give the Corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
| 10 |
SECTION 6.06. Regulations. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for stock of the Corporation.
SECTION 6.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 70 nor less than 10 days before the date of such meeting, nor more than 70 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE VII
Fiscal Year
SECTION 7.01. The fiscal year of the Corporation shall end on the 31st day of December in each year unless changed by resolution of the Board of Directors.
ARTICLE VIII
Indemnification and Insurance
SECTION 8.01. Indemnification. (a) (i) Any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, his or her testator or his or her intestate is or was a director, officer, employee or agent of the Corporation or any corporation which consolidates or merges with or into the Corporation and which if its separate existence had continued would have had power and authority to indemnify such person (a “Predecessor”), shall be indemnified by the Corporation and (ii) any person made, or threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that he or she, his or her testator or his or her intestate is or was serving as a director, officer, employee or agent at the request of the Corporation, of any other corporation or any partnership, joint venture, trust or other enterprise (an “Affiliate”), may, at the discretion of the Board of Directors, be indemnified by the Corporation, in each case, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, or in connection with any appeal therein; provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, Predecessor or Affiliate, as the case may be, or with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; except, in the case of an action, suit or proceeding by or in the right of the Corporation in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such director, officer, employee or agent is liable for negligence or misconduct in the performance of his or her duties, unless a court of competent jurisdiction shall determine that, despite such adjudication, such person is fairly and reasonably entitled to indemnification.
| 11 |
(b) Without limitation of any right conferred by paragraph (a) of this Section 8.01, (i) any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, his or her testator or his or her intestate is or was a director, officer, employee or agent of the Corporation or a Predecessor and is or was serving as a fiduciary of, or otherwise rendering services to, any employee benefit plan of, or relating to the Corporation or a Predecessor, shall be indemnified by the Corporation, and (ii) any person made, or threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that he or she, his or her testator or his or her intestate is or was serving as a director, officer, employee or agent at the request of the Corporation or an Affiliate, and is or was serving as a fiduciary of, or otherwise rendering services to, any employee benefit plan of, or relating to such Affiliate, may, at the discretion of the Board of Directors, be indemnified by the Corporation, in each case, against expenses (including attorneys’ fees), judgments, fines, excise taxes and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, or in connection with any appeal therein; provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, Predecessor or Affiliate, as the case may be, or with respect to a criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; except in the case of an action, suit or proceeding by or in the right of the Corporation in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such director, officer, employee or agent is liable for negligence or misconduct in the performance of his or her duties, unless a court of competent jurisdiction shall determine that, despite such adjudication, such person is fairly and reasonably entitled to indemnification.
The rights to indemnification and to the advance of expenses conferred in this Section 8.01 shall not be exclusive of any other right which any person may have or hereafter acquire under the Certificate of Incorporation or under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
| 12 |
SECTION 8.02. Insurance for Indemnification. The Corporation may purchase and maintain insurance for the indemnification of the Corporation and the directors, officers, employees and agents of the Corporation to the full extent and in the manner permitted by the applicable laws of the United States and the State of Delaware from time to time in effect.
ARTICLE IX
Waiver of Notice
SECTION 9.01. Whenever any notice is required to be given by these Bylaws or the Certificate of Incorporation of the Corporation or the General Corporation Law of the State of Delaware, the person entitled thereto may, in person or by attorney thereunto authorized, in writing or other form of recorded communication, waive such notice, whether before or after the meeting or other matter in respect of which such notice is given, and in such event such notice need not be given to such person and such waiver shall be deemed equivalent to such notice.
ARTICLE X
Amendments
SECTION 10.01. Any Bylaw (including these Bylaws) may be adopted, amended or repealed by the Board of Directors or by the stockholders in any manner not inconsistent with the terms of any preferred stock of the Corporation then-outstanding, the General Corporation Law of the State of Delaware or the Certificate of Incorporation of the Corporation.
Exhibit 3.1
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF Incorporation
OF
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY
(Regarding the Designation and Authorization of Series C Preferred Stock)
TO THE SECRETARY OF STATE
OF THE STATE OF IOWA:
Pursuant to the provisions of Section 490.1006 of the Iowa Business Corporation Act (the “IBCA”), the undersigned corporation, AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY (“AEL”), hereby adopts the following Articles of Amendment to its Articles of Incorporation (“Articles of Amendment”) in connection with the designation and authorization of a series of preferred stock of the undersigned corporation designated as “Preferred Stock, Series C” (the “Series C Preferred Stock”):
1. The name of the corporation is American Equity Investment Life Holding Company.
2. AEL will undergo a merger (the “Merger”) with American National Group, LLC (“ANAT”), with AEL surviving the Merger, pursuant to which, among other things, AEL will become the successor issuer of ANAT’s preferred stock designated as “Preferred Stock, Series C”, to be effective on 9:00 am Eastern Time on May 7, 2024 (the “Effective Time”). The designation, authorization and terms of the Series C Preferred Stock are set forth in Exhibit A attached hereto, which are incorporated fully into these Articles of Amendment. In connection therewith, AEL adopts these Articles of Amendment (including Exhibit A attached hereto) as of the Effective Time, including amending the Articles of Incorporation by deleting in its entirety the first sentence of Article FOURTH, which now states:
The total number of shares that may be issued by the Corporation is 202,000,000 shares, of which 2,000,000 shares of the par value of $1 per share shall be designated Preferred Stock, comprising of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A (“Series A Preferred Stock”) and 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B (“Series B Preferred Stock”, and together with the Series A Preferred Stock, the “Preferred Stock”) and 200,000,000 shares of the par value of $1 per share shall be designated Common Stock.
And inserting in lieu thereof the following:
The total number of shares that may be issued by the Corporation is 201,909,500 shares, of which (a) 32,000 shares of the par value of $1 per share shall be designated Preferred Stock, comprising of (x) 20,000 shares of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A (“Series A Preferred Stock”) and (y) 12,000 shares of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B (“Series B Preferred Stock”), (b) 1,877,500 shares of the par value of $0.01 per share shall be designated Preferred Stock, comprising of Preferred Stock, Series C (“Series C Preferred Stock”, and collectively with the Series A Preferred Stock and the Series B Preferred Stock, the “Preferred Stock”) and (c) 200,000,000 shares of the par value of $1 per share shall be designated Common Stock.
3. The Merger was duly adopted and approved by the shareholders of AEL and the Board of Directors of AEL (the “Board of Directors”). The resolutions of the Board of Directors authorizing the merger were duly adopted and approved by the Board of Directors in the manner required by the IBCA and by the Articles of Incorporation of AEL.
4. These Articles of Amendment were duly adopted and approved by the shareholders of AEL and the Board of Directors of AEL. The resolutions of the Board of Directors authorizing these Articles of Amendment were duly adopted and approved by the Board of Directors in the manner required by the IBCA and by the Articles of Incorporation of AEL.
Dated this 2nd day of May, 2024.
| AMERICAN EQUITY INVESTMENT | |
| LIFE HOLDING COMPANY |
| By: | /s/ Garrett Williams |
| Name: | Garrett Williams | |
| Title: | Corporate Secretary and Senior | |
| Vice President |
Exhibit A
CERTIFICATE OF DESIGNATIONS
OF
SERIES C PREFERRED STOCK
OF
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY
In accordance with Article FOURTH of the Articles of Incorporation of American Equity Investment Life Holding Company (the “Corporation”), the Board of Directors of the Corporation (“the Board”) has established the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “Preferred Stock, Series C” and has stated and expressed such voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of such series of preferred stock in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “Preferred Stock, Series C” (the “Series C Preferred Stock”). Each share of Series C Preferred Stock shall be identical in all respects to every other share of Series C Preferred Stock.
2. Number of Shares. The authorized number of shares of Series C Preferred Stock shall be 1,877,500. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series C Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series C Preferred Stock, issue additional shares of Series C Preferred Stock that shall form a single series with the Series C Preferred Stock initially authorized hereby, provided that such additional shares of Series C Preferred Stock are fungible for U.S. federal income tax purposes with the Series C Preferred Stock authorized hereby. Shares of Series C Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series C Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(c) “Certificate of Designations” has the meaning specified in the preamble.
(d) “Common Stock” means the common stock, par value $1.00 per share, of the Corporation.
(e) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series C Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(f) “Liquidation Preference” has the meaning specified in Section 6(b).
(g) “Parity Stock” means the Series A Preferred Stock, Series B Preferred Stock and any other class or series of the Corporation’s stock that ranks equally with the Series C Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(h) “Series A Preferred Stock” means the Corporation’s 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A.
(i) “Series B Preferred Stock” means the Corporation’s 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series C Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with any Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least 66 2/3% of the shares of the Series C Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends. Dividends on the Series C Preferred Stock will not be mandatory. Holders of shares of Series C Preferred Stock shall be entitled to receive such dividends and other distributions (payable in cash or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
If any dividends (payable in cash, property, stock or otherwise) are determined by the Board (or a duly authorized committee of the Board) to be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, the Series C Preferred Stock shall be entitled to participate in any such dividend.
Dividends on the Series C Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series C Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to stockholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series C Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $1,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends. Holders of the Series C Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series C Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series C Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series C Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series C Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series C Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series C Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption. The Series C Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem all, or a portion of, the shares of Series C Preferred Stock then outstanding, at any time, at a redemption price equal to the stated amount of $1,000 per share of Series C Preferred Stock. Upon such redemption, (a) all shares so called for redemption shall no longer be deemed outstanding and (b) all rights with respect to such shares shall forthwith on the date of such redemption cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Holders of the shares of Series C Preferred Stock will have no right to require the redemption or repurchase of the shares of Series C Preferred Stock. No redemption of the shares of Series C Preferred Stock will be consummated unless the full dividend has been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside) on all outstanding shares of Parity Stock for the latest completed dividend period for such shares of Parity Stock.
8. Voting Rights. The holders of Series C Preferred Stock shall not have any voting rights except as otherwise from time to time required by law.
9. Notices. All notices or communications in respect of Series C Preferred Stock shall be sufficiently given if given in writing or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
10. Conversion Rights. The Series C Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
11. No Preemptive Rights. No share of Series C Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
12. Other Rights. The shares of Series C Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
13. Certificates. The Corporation may, at its option, issue shares of Series C Preferred Stock without certificates.
Exhibit 3.2
CERTIFICATE OF Incorporation
OF
AMERICAN NATIONAL GROUP INC.
The undersigned, acting as the incorporator of a corporation under and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”), hereby certifies that:
FIRST: The name of the corporation (the “Corporation”) is American National Group Inc.
SECOND: The address, including street, number, city, and county, of the registered office of the Corporation in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
THIRD: The Corporation is being incorporated in connection with the conversion of American Equity Investment Life Holding Company, an Iowa corporation (the “Converting Corporation”) into the Corporation (the “Conversion”), and this Certificate of Incorporation is being filed simultaneously with the Certificate of Conversion of the Converting Corporation to the Corporation pursuant to the terms of the DGCL, including Section 265. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.
FOURTH: This Certificate of Incorporation shall be effective at 4:01pm Eastern Time on May 7, 2024.
FIFTH: The aggregate number of shares of all classes of stock which the Corporation shall have authority to issue is 1,919,500, of which:
| i. | 1,909,500 shares shall be designated Preferred Stock, comprising of (x) 20,000 shares of 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A, par value $1.00 per share (the “Series A Preferred Stock”), (y) 12,000 shares of 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B, par value $1.00 per share (the “Series B Preferred Stock”) and (z) 1,877,500 shares of Preferred Stock, Series C, par value $0.01 per share (the “Series C Preferred Stock”; the Series C Preferred Stock, and collectively with Series A Preferred Stock and the Series B Preferred Stock, the “Preferred Stock”); and |
| ii. | 10,000 shares, par value $0.01 per share, shall be designated Common Stock (“Common Stock”). |
SIXTH: The name and the mailing address of the incorporator are as follows:
2
| NAME | MAILING ADDRESS |
| ANG Midco I LLC | c/o BAMR US Holdings LLC 250 Vesey Street, 15th Floor New York, New York 10281-1023 USA |
SEVENTH: Each holder of shares of Common Stock shall be entitled to one vote for each such share of Common Stock on each matter properly submitted to the stockholders on which the holders of shares of Common Stock are entitled to vote.
EIGHTH: Subject to the rights of the holders of any outstanding shares of Preferred Stock and to applicable law, the holders of shares of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board of Directors from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
NINTH: Subject to the rights of the holders of any outstanding shares of Preferred Stock and to applicable law, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of the Common Stock held by them.
TENTH: The Corporation may issue fractional shares of Common Stock. Fractional shares shall be entitled to dividends (on a pro rata basis), and the holders of fractional shares shall entitled to all rights as stockholders of the Corporation to the extent provided herein and under applicable law in respect of such fractional shares.
ELEVENTH: The following is a statement of the designations, voting powers, preferences and rights and the qualifications, limitations or restrictions of Preferred Stock.
(1) Exhibit A attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series A Preferred Stock and is incorporated herein by reference as if set forth in full.
(2) Exhibit B attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series B Preferred Stock and is incorporated herein by reference as if set forth in full.
(3) Exhibit C attached hereto sets forth the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of the Series C Preferred Stock and is incorporated herein by reference as if set forth in full.
3
(4) Except as set forth in Exhibit A, Exhibit B and Exhibit C, holders of shares of Preferred Stock shall not have any right to vote for election of directors or on any other matter or any right to notice of any meeting of stockholders.
(5) In the event of any complete, or substantially complete, voluntary or involuntary, liquidation, dissolution or winding up of the Corporation, before any distribution or payment shall be made to the holders of shares of Common Stock, all of the assets of the Corporation shall be paid and distributed among the shareholders of the Corporation in accordance with the terms set forth in each of Exhibit A, Exhibit B and Exhibit C. Neither the merger nor consolidation of the Corporation into or with any other corporation, nor the merger of any corporation into the Corporation, nor the sale or transfer by the Corporation of all or any part of its assets shall be deemed a liquidation, dissolution or winding up of the Corporation for the purposes of this subsection (5).
TWELFTH: In furtherance and not in limitation of the powers conferred upon it by law, subject to the rights of the holders of any outstanding shares of Preferred Stock, the Board of Directors of the Corporation is expressly authorized to adopt, amend or repeal the Bylaws of the Corporation.
THIRTEENTH: To the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereafter be amended, no director or officer of the Corporation shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director or officer. No amendment to or repeal of this Article THIRTEENTH shall apply to or have any effect on the liability or alleged liability of any director or officer of the Corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment or repeal.
FOURTEENTH: The Corporation shall, to the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereinafter be amended, indemnify any and all persons whom it shall have power to indemnify under such law from and against any and all of the expenses, liabilities, or other matters referred to in or covered by such law. Such indemnification shall be mandatory and not discretionary. The indemnification provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Any repeal or modification of this Article FOURTEENTH shall not adversely affect any right to indemnification of any persons existing at the time of such repeal or modification with respect to any matter occurring prior to such repeal or modification.
4
The Corporation shall, to the fullest extent permitted by the law of the State of Delaware as it now exists and as it may hereinafter be amended, advance all costs and expenses (including without limitation, attorneys’ fees and expenses) incurred by any director or officer within 15 days of the presentation of same to the Corporation, with respect to any one or more actions, suits or proceedings, whether civil, criminal, administrative or investigative, so long as the Corporation receives from the director or officer an unsecured undertaking to repay such expenses if it shall ultimately be determined that such director or officer is not entitled to be indemnified by the Corporation under the DGCL. Such obligation to advance costs and expenses shall be mandatory, and not discretionary, and shall include, without limitation, costs and expenses incurred in asserting affirmative defenses, counterclaims and cross claims. Such undertaking to repay may, if first requested in writing by the applicable director or officer, be on behalf of (rather than by) such director or officer, provided that in such case the Corporation shall have the right to approve the party making such undertaking.
FIFTEENTH: Unless and except to the extent that the Bylaws of the Corporation shall so require, the election of directors of the Corporation need not be by written ballot.
[Remainder of Page Intentionally Left Blank]
5
THE UNDERSIGNED, the incorporator of the Corporation, hereby executes this certificate of incorporation as of this 3rd day of May, 2024.
| ANG MIDCO I LLC |
| By: | /s/ Paul Forestell | |
| Name: | Paul Forestell | |
| Title: | Manager |
[Signature Page to American National Group Inc. Certificate of Incorporation]
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
OF
SERIES A PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A” (the “Series A Preferred Stock”). Each share of Series A Preferred Stock shall be identical in all respects to every other share of Series A Preferred Stock, except as to the respective dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted pursuant to Section 5(a) below.
2. Number of Shares. The authorized number of shares of Series A Preferred Stock shall be 20,000. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series A Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series A Preferred Stock, issue additional shares of Series A Preferred Stock that shall form a single series with the Series A Preferred Stock initially authorized hereby, provided that such additional shares of Series A Preferred Stock are fungible for U.S. federal income tax purposes with the Series A Preferred Stock authorized hereby. Shares of Series A Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series A Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Business Day” means any day other than (i) a Saturday or Sunday or a legal holiday or (ii) a day on which federal or state banking institutions in the Borough of Manhattan, The City of New York, are authorized or obligated by law, executive order or regulation to close.
(d) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(e) “Calculation Agent” means, at any time, the person or entity appointed by the Corporation and serving as such agent with respect to the Series A Preferred Stock at such time.
(f) “Certificate of Designations” has the meaning specified in the preamble.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(h) “Dividend Payment Date” has the meaning specified in Section 5(a).
(i) “Dividend Period” has the meaning specified in Section 5(a).
(j) “Dividend Record Date” has the meaning specified in Section 5(a).
(k) “DTC” means The Depository Trust Company.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(m) “First Call Date” means December 1, 2024.
(n) “first series” has the meaning specified in Section 5(b).
(o) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the weekly average yield to maturity for U.S. Treasury securities with a maturity of five years from the next Reset Date and trading in the public securities markets or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date, and (B) the other maturity as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case as published in the most recent H.15 (519). If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Dividend Determination Date.
(p) “H.15 (519)” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System and “most recent H.15 (519)” means the H.15 (519) published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
(q) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series A Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(r) “Liquidation Preference” has the meaning specified in Section 6(b).
(s) “Parity Stock” means any class or series of the Corporation’s stock that ranks equally with the Series A Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(t) “person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
(u) “Preferred Stock” means any and all series of preferred stock, having any par value per share, of the Corporation, including the Series A Preferred Stock.
(v) “Preferred Stock Directors” has the meaning specified in Section 8(b).
(w) “Rating Agency Event” means any nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) of the Exchange Act), that then publishes a rating for the Corporation (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Series A Preferred Stock, which amendment, clarification or change results in:
(i) the shortening of the length of time the Series A Preferred Stock is assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial issuance of the Series A Preferred Stock; or
(ii) the lowering of the equity credit (including up to a lesser amount) assigned to the Series A Preferred Stock by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the initial issuance of the Series A Preferred Stock.
(x) “Registrar” means the registrar with respect to the Series A Preferred Stock, which shall initially be Computershare Inc., and its successors, including any successor appointed by the Corporation.
(y) “Regulatory Capital Event” means that the Corporation becomes subject to capital adequacy supervision by a capital regulator and the capital adequacy guidelines that apply to the Corporation as a result of being so subject set forth criteria pursuant to which the liquidation preference amount of the Series A Preferred Stock would not qualify as capital under such capital adequacy guidelines, as the Corporation may determine at any time, in its sole discretion.
(z) “Reset Date” means the First Call Date and each date falling on the fifth anniversary of the preceding Reset Date.
(aa) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of such Reset Period.
(bb) “Reset Period” means the period from, and including, the First Call Date to, but excluding, the next following Reset Date and thereafter each period from, and including, each Reset Date to, but excluding, the next following Reset Date.
(cc) “second series” shall have the meaning specified in Section 5(b).
(dd) “Securities Act” means the Securities Act of 1933, as amended.
(ee) “Transfer Agent” means the transfer agent with respect to the Series A Preferred Stock, which shall initially be Computershare Inc., and its successors, including any successor appointed by the Corporation.
(ff) “Voting Preferred Stock” means, with regard to any matter as to which the holders of Series A Preferred Stock are entitled to vote as specified in Section 8 of this Certificate of Designations, any other class or series of preferred stock of the Corporation ranking equally with the Series A Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which like voting rights have been conferred and are exercisable with respect to such matter.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series A Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with any series of Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least two-thirds of the shares of the Series A Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends.
(a) Rate. Dividends on the Series A Preferred Stock will not be mandatory. Holders of Series A Preferred Stock will be entitled to receive, when, as and if declared by the Board (or a duly authorized committee of the Board), out of funds legally available for the payment of dividends, under Iowa law, quarterly in arrears on the first day of March, June, September and December of each year, commencing on March 1, 2020 (each such date, a “Dividend Payment Date”), non-cumulative cash dividends that accrue for the relevant Dividend Period as follows:
(i) from the date of original issue, to, but excluding, the First Call Date at a fixed rate per annum of 5.95% on the stated amount of $25,000 per share; and
(ii) from the First Call Date, during each Reset Period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Dividend Determination Date plus 4.322% on the stated amount of $25,000 per share.
If the Corporation issues additional shares of Series A Preferred Stock after the original issue date, dividends on such shares will accrue from the original issue date if such shares are issued prior to the first Dividend Payment Date. Dividends on Series A Preferred Stock issued after the first Dividend Payment Date will accrue from either the date on which such shares are issued (if such shares are issued on a Dividend Payment Date) or the Dividend Payment Date next preceding the date such shares are issued (if such shares are not issued on a Dividend Payment Date).
Dividends on the Series A Preferred Stock shall not be cumulative. Accordingly, if the Board (or a duly authorized committee of the Board) does not declare a dividend on the Series A Preferred Stock payable in respect of any Dividend Period before the related Dividend Payment Date, (i) such dividend will not accrue, (ii) the Corporation will have no obligation to pay a dividend for that Dividend Period on the Dividend Payment Date or at any future time, whether or not dividends on the Series A Preferred Stock are declared for any future Dividend Period and (iii) no interest, or sum of money in lieu of interest, will be payable in respect of any dividend not so declared.
Dividends, if so declared, that are payable on the Series A Preferred Stock on any Dividend Payment Date will be payable to holders of record of the Series A Preferred Stock as they appear on the books of the Corporation on the applicable record date, which shall be the 15th calendar day before such Dividend Payment Date or such other record date fixed by the Board (or a duly authorized committee of the Board) that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall (i) commence on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on, and include, the original issue date of the Series A Preferred Stock (provided that for any share of Series A Preferred Stock issued after the original issue date of the Series A Preferred Stock, the initial Dividend Period for such shares may commence on and include the original issue date of the Series A Preferred Stock if such shares are issued prior to the first Dividend Payment Date or otherwise will commence on and include the date on which such shares are issued (if it is a Dividend Payment Date) or the Dividend Payment Date next preceding the date they are issued)) and (ii) end on, but exclude, the next Dividend Payment Date.
Dividends payable on the Series A Preferred Stock in respect of any Dividend Period shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If any Dividend Payment Date is a day that is not a Business Day, then the dividend with respect to that Dividend Payment Date will instead be paid on the immediately succeeding Business Day, without interest or other payment in respect of such delayed payment.
The applicable dividend rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date. Promptly upon such determination, the Calculation Agent shall notify the Corporation of the dividend rate for the Reset Period. The Calculation Agent’s determination of any dividend rate, and its calculation of the amount of dividends for any Dividend Period beginning on or after the First Call Date will be (i) on file at the Corporation’s principal offices, (ii) made available to any holder of Series A Preferred Stock upon request and (iii) final and binding in the absence of manifest error.
Holders of Series A Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series A Preferred Stock as specified in this Section 5 (subject to the other provisions of this Certificate of Designations).
(b) Priority Dividends. So long as any shares of Series A Preferred Stock remain outstanding for any Dividend Period, unless the full dividends for the latest completed Dividend Period on all outstanding shares of Series A Preferred Stock have been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside), during a Dividend Period:
(i) no dividend shall be declared or paid on the Common Stock or any other shares of Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series A Preferred Stock as described below), other than:
(A) any dividend paid on Junior Stock or Parity Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock or (solely in the case of Parity Stock) other Parity Stock; or
(B) any dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of rights, stock or other property under such plan, or the redemption or repurchase of any rights under such plan; and
(ii) no Common Stock or other Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series A Preferred Stock as described below) shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than:
(A) as a result of a reclassification of Junior Stock for or into other Junior Stock or a reclassification of Parity Stock for or into other Parity Stock, as applicable,
(B) the exchange, redemption or conversion of one share of Junior Stock for or into another share of Junior Stock or the exchange, redemption or conversion of one share of Parity stock for or into another share of Parity Stock, as applicable,
(C) purchases, redemptions or other acquisitions of shares of Junior Stock or Parity Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or stockholder stock purchase plan, or (z) the satisfaction of the Corporation’s obligations pursuant to any contract relating to the foregoing clauses (x) or (y) outstanding at the beginning of the applicable Dividend Period requiring such purchase, redemption or other acquisition,
(D) the purchase of fractional interests in shares of Junior Stock or Parity Stock, as the case may be, pursuant to the conversion or exchange provisions of such securities or the security being converted or exchanged,
(E) through the use of the proceeds of a substantially contemporaneous sale of Junior Stock or Parity Stock, as applicable, or
(F) in the case of Parity Stock, pro rata purchases, offers or other acquisitions for consideration by the Corporation to purchase all, or a pro rata portion of, the Series A Preferred Stock and such Parity Stock.
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside) in full on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend Period) on the Series A Preferred Stock and any shares of Parity Stock, all dividends declared on the Series A Preferred Stock and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as all accrued but unpaid dividends per share on the Series A Preferred Stock and all Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) bear to each other. As used in this paragraph, payment of dividends “in full” means, as to any Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a Dividend Period with respect to the Series A Preferred Stock or any shares of Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series, as applicable (in either case, a “second series”), then, for purposes of this paragraph, the Board (or a duly authorized committee of the Board) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Parity Stock and Dividend Period(s) with respect to the Series A Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Parity Stock and the Series A Preferred Stock.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board (or a duly authorized committee of the Board) may be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, and the Series A Preferred Stock shall not be entitled to participate in any such dividend.
Dividends on the Series A Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series A Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to stockholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series A Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $25,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends.
Holders of the Series A Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series A Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series A Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series A Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series A Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series A Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series A Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption.
(a) Optional Redemption. The Series A Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of Series A Preferred Stock at the time outstanding upon notice given as provided in Section 7(c) below:
(i) in whole or in part, from time to time, on or after the First Call Date, at a redemption price equal to the stated amount of $25,000 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date,
(ii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to $25,500 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series A Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date, or
(iii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Regulatory Capital Event, at a redemption price equal to the stated amount of $25,000 per share of Series A Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series A Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date.
The redemption price for any shares of Series A Preferred Stock shall be payable on the Redemption Date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a Redemption Date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not constitute a part of or be paid to the holder entitled to receive the redemption price on the Redemption Date, but rather shall be paid to the holder of record of the redeemed shares on the Dividend Record Date relating to such Dividend Payment Date as provided in Section 5 above. Holders of the Series A Preferred Stock will have no right to require the redemption or repurchase of the Series A Preferred Stock.
(b) No Sinking Fund. The Series A Preferred Stock will not be subject to any mandatory redemption, sinking fund, retirement fund, purchase fund or other similar provisions.
(c) Notice of Redemption. Notice of every redemption of shares of Series A Preferred Stock shall be given by first-class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be not less than 30 days and not more than 60 days prior to the date fixed for redemption thereof. Any notice mailed as provided in this Section 7(c) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series A Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series A Preferred Stock. Notwithstanding the foregoing, if the Series A Preferred Stock is held in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of Series A Preferred Stock at such time and in any manner permitted by such facility.
Each such notice given to a holder shall state: (i) the Redemption Date; (ii) the number of shares of Series A Preferred Stock to be redeemed and, if less than all the shares of Series A Preferred Stock held by such holder are to be redeemed, the number of shares of such Series A Preferred Stock to be redeemed from such holder (if determinable at the time of such notice); (iii) the redemption price; (iv) if shares of Series A Preferred Stock are evidenced by definitive certificates, the place or places where holders may surrender certificates evidencing those shares of Series A Preferred Stock for payment of the redemption price; and (v) that dividends will not accrue for any period beginning on or after the Redemption Date.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series A Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro rata, by lot or by such other method in accordance with the procedures of DTC. Subject to the provisions hereof, the Corporation shall have full power and authority to prescribe the terms and conditions upon which shares of Series A Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the Redemption Date specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the Redemption Date (i) dividends shall not accrue on all shares so called for redemption for any period beginning on or after the Redemption Date, (ii) all shares so called for redemption shall no longer be deemed outstanding and (iii) all rights with respect to such shares shall forthwith on such Redemption Date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Any funds unclaimed at the end of two years from the Redemption Date, to the extent permitted by law, shall be released from the trust so established and may be commingled with other funds of the Corporation, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
8. Voting Rights.
(a) General. The holders of Series A Preferred Stock shall not have any voting rights except as set forth below or as otherwise from time to time required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of Series A Preferred Stock shall have not been declared and paid for the equivalent of at least six Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares of Series A Preferred Stock, voting together as a single class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board (the “Preferred Stock Directors”), provided that the election of any such directors shall not cause the Corporation to violate the corporate governance requirement of the New York Stock Exchange (the “NYSE”) (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors and provided, further, that the Board shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series A Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), and at each subsequent annual meeting. These voting rights will continue until dividends on the shares of Series A Preferred Stock and any such series of Voting Preferred Stock for at least four consecutive dividend periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following the Nonpayment shall have been fully paid.
If and when dividends for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment have been paid in full, the holders of the Series A Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment) and, if such voting rights for all other holders of Voting Preferred Stock have terminated, the term of office of each Preferred Stock Director so elected shall immediately terminate and the number of directors on the Board shall automatically decrease by two. In determining whether dividends have been paid for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment, the Corporation may take account of any dividend the Corporation elects to pay for such a Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of Series A Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series A Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above, provided that the filling of any such vacancy shall not cause the Corporation to violate the corporate governance requirement of the NYSE (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series A Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of Series A Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Articles of Incorporation, the affirmative vote or consent of the holders of at least 66 2/3% of the shares of Series A Preferred Stock, voting separately as a class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Articles of Incorporation to authorize or increase the authorized amount of, or issue any shares of any class or series or any obligation or securities convertible into shares of any class or series of the Corporation’s capital stock ranking senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation;
(ii) Amendment of Articles of Incorporation, Bylaws or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Articles of Incorporation (including this Certificate of Designations) or the Bylaws that would alter or change the voting powers, preferences, privileges or special rights of the Series A Preferred Stock so as to affect them adversely; provided, however, that the amendment of the Articles of Incorporation so as to increase the amount of authorized or issued Series A Preferred Stock or authorized Common Stock or Preferred Stock, or so as to authorize or create, or to increase the authorized or issued amount of, any class or series of stock that does not rank senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation shall not be deemed to affect adversely the voting powers, preferences, privileges or special rights of the Series A Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (A) a binding share exchange or reclassification involving the Series A Preferred Stock, (B) a merger or consolidation of the Corporation with another entity (whether or not a corporation) or (C) a conversion, transfer, domestication or continuance of the Corporation into another entity or an entity organized under the laws of another jurisdiction, unless, in each case, (x) the shares of Series A Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, or any such conversion, transfer, domestication or continuance, the shares of Series A Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series A Preferred Stock immediately prior to such consummation, taken as a whole.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance described above would materially and adversely affect one or more but not all series of Voting Preferred Stock (including the Series A Preferred Stock for this purpose), then only the series materially and adversely affected and entitled to vote shall vote to the exclusion of all other series of Preferred Stock. If all series of Preferred Stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance, described above, there shall be required a two-thirds approval of each series that will have a diminished status.
(d) Changes for Clarification. To the fullest extent permitted by law, without the consent of the holders of Series A Preferred Stock, so long as such action does not adversely affect the rights, preferences, privileges and voting powers of the Series A Preferred Stock, the Corporation may supplement any terms of the Series A Preferred Stock:
| (i) | to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations that may be defective or inconsistent; or |
| (ii) | to make any provision with respect to matters or questions arising with respect to the Series A Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations. |
(e) Changes After Provisions for Redemption. No vote or consent of the holders of Series A Preferred Stock shall be required pursuant to Sections 8(b) and (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to Sections 8(b) and (c), all outstanding shares of Series A Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been set aside for such redemption, in each case pursuant to Section 7 above, unless in the case of a vote or consent required to authorize stock ranking senior to the Series A Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation, if all outstanding shares of Series A Preferred Stock are being redeemed with the proceeds from the sale of such stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of Series A Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board (or a duly authorized committee of the Board), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles of Incorporation, the Bylaws, applicable law and any national securities exchange or other trading facility on which the Series A Preferred Stock is listed or traded at the time. Whether a plurality, majority or other portion of the Series A Preferred Stock and any Voting Preferred Stock has been voted in favor of any matter shall be determined by the Corporation by reference to the respective stated amounts of the shares of the Series A Preferred Stock and Voting Preferred Stock voted or covered by the consent.
9. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent for the Series A Preferred Stock may deem and treat the record holder of any share of Series A Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor such Transfer Agent shall be affected by any notice to the contrary.
10. Notices. All notices or communications in respect of Series A Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first-class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
11. No Conversion Rights. The Series A Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
12. No Preemptive Rights. No share of Series A Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
13. Other Rights. The shares of Series A Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
14. Certificates. The Corporation may, at its option, issue shares of Series A Preferred Stock without certificates. As long as DTC or its nominee is the registered owner of the Series A Preferred Stock, DTC or its nominee, as the case may be, will be considered the sole owner and holder of all shares of Series A Preferred Stock for all purposes under the instruments governing the rights and obligations of holders of shares of Series A Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of Series A Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation will either print and deliver certificates for the shares of Series A Preferred Stock or provide for the direct registration of the Series A Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry- only transfers through DTC (or a successor securities depositary), certificates for the shares of Series A Preferred Stock will be printed and delivered to DTC or the Corporation will provide for the direct registration of the Series A Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series A Preferred Stock:
(a) will not be entitled to have such Series A Preferred Stock registered in their names;
(b) will not receive or be entitled to receive physical delivery of securities certificates in exchange for beneficial interests in the Series A Preferred Stock; and
(c) will not be considered to be owners or holders of the shares of Series A Preferred Stock for any purpose under the instruments governing the rights and obligations of holders of shares of Series A Preferred Stock.
EXHIBIT B
CERTIFICATE OF DESIGNATIONS
OF
SERIES B PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B” (the “Series B Preferred Stock”). Each share of Series B Preferred Stock shall be identical in all respects to every other share of Series B Preferred Stock, except as to the respective dates from which dividends thereon shall accrue, to the extent such dates may differ as permitted pursuant to Section 5(a) below.
2. Number of Shares. The authorized number of shares of Series B Preferred Stock shall be 12,000. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series B Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series B Preferred Stock, issue additional shares of Series B Preferred Stock that shall form a single series with the Series B Preferred Stock initially authorized hereby, provided that such additional shares of Series B Preferred Stock are fungible for U.S. federal income tax purposes with the Series B Preferred Stock authorized hereby. Shares of Series B Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series B Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Business Day” means any day other than (i) a Saturday or Sunday or a legal holiday or (ii) a day on which federal or state banking institutions in the Borough of Manhattan, The City of New York, are authorized or obligated by law, executive order or regulation to close.
(d) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(e) “Calculation Agent” means, at any time, the person or entity appointed by the Corporation and serving as such agent with respect to the Series B Preferred Stock at such time.
(f) “Certificate of Designations” has the meaning specified in the preamble.
(g) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(h) “Dividend Payment Date” has the meaning specified in Section 5(a).
(i) “Dividend Period” has the meaning specified in Section 5(a).
(j) “Dividend Record Date” has the meaning specified in Section 5(a).
(k) “DTC” means The Depository Trust Company.
(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(m) “First Call Date” means September 1, 2025.
(n) “first series” has the meaning specified in Section 5(b).
(o) “Five-year U.S. Treasury Rate” means, as of any Reset Dividend Determination Date, as applicable, (i) an interest rate (expressed as a decimal) determined to be the per annum rate equal to the weekly average yield to maturity for U.S. Treasury securities with a maturity of five years from the next Reset Date and trading in the public securities markets or (ii) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, then the rate will be determined by interpolation between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Dividend Determination Date, and (B) the other maturity as close as possible to, but later than, the Reset Date following the next succeeding Reset Dividend Determination Date, in each case as published in the most recent H.15. If the Five-year U.S. Treasury Rate cannot be determined pursuant to the methods described in clause (i) or (ii) above, then the Five-year U.S. Treasury Rate will be the same interest rate determined for the prior Reset Dividend Determination Date.
(p) “H.15” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System and “most recent H.15” means the H.15 published closest in time but prior to the close of business on the second Business Day prior to the applicable Reset Date.
(q) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series B Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(r) “Liquidation Preference” has the meaning specified in Section 6(b).
(s) “Parity Stock” means the Series A Preferred Stock and any other class or series of the Corporation’s stock that ranks equally with the Series B Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(t) “person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
(u) “Preferred Stock” means any and all series of preferred stock, having any par value per share, of the Corporation, including the Series B Preferred Stock.
(v) “Preferred Stock Directors” has the meaning specified in Section 8(b).
(w) “Rating Agency Event” means any nationally recognized statistical rating organization (within the meaning of Section 3(a)(62) of the Exchange Act), that then publishes a rating for the Corporation (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Series B Preferred Stock, which amendment, clarification or change results in:
(i) the shortening of the length of time the Series B Preferred Stock is assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial issuance of the Series B Preferred Stock; or
(ii) the lowering of the equity credit (including up to a lesser amount) assigned to the Series B Preferred Stock by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the initial issuance of the Series B Preferred Stock.
(x) “Registrar” means the registrar with respect to the Series B Preferred Stock, which shall initially be Computershare Trust Company, N.A., and its successors, including any successor appointed by the Corporation.
(y) “Regulatory Capital Event” means that the Corporation becomes subject to capital adequacy supervision by a capital regulator and the capital adequacy guidelines that apply to the Corporation as a result of being so subject set forth criteria pursuant to which the liquidation preference amount of the Series B Preferred Stock would not qualify as capital under such capital adequacy guidelines, as the Corporation may determine at any time, in its sole discretion.
(z) “Reset Date” means the First Call Date and each date falling on the fifth anniversary of the preceding Reset Date.
(aa) “Reset Dividend Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of such Reset Period.
(bb) “Reset Period” means the period from, and including, the First Call Date to, but excluding, the next following Reset Date and thereafter each period from, and including, each Reset Date to, but excluding, the next following Reset Date.
(cc) “second series” shall have the meaning specified in Section 5(b).
(dd) “Securities Act” means the Securities Act of 1933, as amended.
(ee) “Series A Preferred Stock” means the Corporation’s 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A.
(ff) “Transfer Agent” means the transfer agent with respect to the Series B Preferred Stock, which shall initially be Computershare Trust Company, N.A., and its successors, including any successor appointed by the Corporation.
(gg) “Voting Preferred Stock” means, with regard to any matter as to which the holders of Series B Preferred Stock are entitled to vote as specified in Section 8 of this Certificate of Designations, any other class or series of preferred stock of the Corporation ranking equally with the Series B Preferred Stock as to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which like voting rights have been conferred and are exercisable with respect to such matter.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series B Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with the Series A Preferred Stock and each other series of Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least 66 2/3% of the shares of the Series B Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends.
(a) Rate. Dividends on the Series B Preferred Stock will not be mandatory. Holders of Series B Preferred Stock will be entitled to receive, when, as and if declared by the Board (or a duly authorized committee of the Board), out of funds legally available for the payment of dividends, under Iowa law, quarterly in arrears on the first day of March, June, September and December of each year, commencing on December 1, 2020 (each such date, a “Dividend Payment Date”), non-cumulative cash dividends that accrue for the relevant Dividend Period as follows:
(i) from the date of original issue, to, but excluding, the First Call Date at a fixed rate per annum of 6.625% on the stated amount of $25,000 per share; and
(ii) from the First Call Date, during each Reset Period, at a rate per annum equal to the Five-year U.S. Treasury Rate as of the most recent Reset Dividend Determination Date plus 6.297% on the stated amount of $25,000 per share.
If the Corporation issues additional shares of Series B Preferred Stock after the original issue date, dividends on such shares will accrue from the original issue date if such shares are issued prior to the first Dividend Payment Date. Dividends on Series B Preferred Stock issued after the first Dividend Payment Date will accrue from either the date on which such shares are issued (if such shares are issued on a Dividend Payment Date) or the Dividend Payment Date next preceding the date such shares are issued (if such shares are not issued on a Dividend Payment Date).
Dividends on the Series B Preferred Stock shall not be cumulative. Accordingly, if the Board (or a duly authorized committee of the Board) does not declare a dividend on the Series B Preferred Stock payable in respect of any Dividend Period before the related Dividend Payment Date, (i) such dividend will not accrue, (ii) the Corporation will have no obligation to pay a dividend for that Dividend Period on the Dividend Payment Date or at any future time, whether or not dividends on the Series B Preferred Stock are declared for any future Dividend Period and (iii) no interest, or sum of money in lieu of interest, will be payable in respect of any dividend not so declared.
Dividends, if so declared, that are payable on the Series B Preferred Stock on any Dividend Payment Date will be payable to holders of record of the Series B Preferred Stock as they appear on the books of the Corporation on the applicable record date, which shall be the 15th calendar day before such Dividend Payment Date or such other record date fixed by the Board (or a duly authorized committee of the Board) that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a “Dividend Record Date”). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Each dividend period (a “Dividend Period”) shall (i) commence on and include a Dividend Payment Date (other than the initial Dividend Period, which shall commence on, and include, the original issue date of the Series B Preferred Stock (provided that for any share of Series B Preferred Stock issued after the original issue date of the Series B Preferred Stock, the initial Dividend Period for such shares may commence on and include the original issue date of the Series B Preferred Stock if such shares are issued prior to the first Dividend Payment Date or otherwise will commence on and include the date on which such shares are issued (if it is a Dividend Payment Date) or the Dividend Payment Date next preceding the date they are issued)) and (ii) end on, but exclude, the next Dividend Payment Date.
Dividends payable on the Series B Preferred Stock in respect of any Dividend Period shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. If any Dividend Payment Date is a day that is not a Business Day, then the dividend with respect to that Dividend Payment Date will instead be paid on the immediately succeeding Business Day, without interest or other payment in respect of such delayed payment.
The applicable dividend rate for each Reset Period will be determined by the Calculation Agent, as of the applicable Reset Dividend Determination Date. Promptly upon such determination, the Calculation Agent shall notify the Corporation of the dividend rate for the Reset Period. The Calculation Agent’s determination of any dividend rate, and its calculation of the amount of dividends for any Dividend Period beginning on or after the First Call Date will be (i) on file at the Corporation’s principal offices, (ii) made available to any holder of Series B Preferred Stock upon request and (iii) final and binding in the absence of manifest error.
Holders of Series B Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on the Series B Preferred Stock as specified in this Section 5 (subject to the other provisions of this Certificate of Designations).
(b) Priority Dividends. So long as any shares of Series B Preferred Stock remain outstanding for any Dividend Period, unless the full dividends for the latest completed Dividend Period on all outstanding shares of Series B Preferred Stock have been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside), during a Dividend Period:
(i) no dividend shall be declared or paid on the Common Stock or any other shares of Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series B Preferred Stock as described below), other than:
| (A) | any dividend paid on Junior Stock or Parity Stock in the form of stock, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or is other Junior Stock or (solely in the case of Parity Stock) other Parity Stock; or |
| (B) | any dividend in connection with the implementation of a shareholders’ rights plan, or the issuance of rights, stock or other property under such plan, or the redemption or repurchase of any rights under such plan; and |
(ii) no Common Stock or other Junior Stock or Parity Stock (except, in the case of Parity Stock, on a pro rata basis with the Series B Preferred Stock as described below) shall be purchased, redeemed or otherwise acquired for consideration by the Corporation, directly or indirectly, other than:
| (A) | as a result of a reclassification of Junior Stock for or into other Junior Stock or a reclassification of Parity Stock for or into other Parity Stock, as applicable, |
| (B) | the exchange, redemption or conversion of one share of Junior Stock for or into another share of Junior Stock or the exchange, redemption or conversion of one share of Parity stock for or into another share of Parity Stock, as applicable, |
| (C) | purchases, redemptions or other acquisitions of shares of Junior Stock or Parity Stock in connection with (x) any employment contract, benefit plan or other similar arrangement with or for the benefit of one or more employees, officers, directors, consultants or independent contractors, (y) a dividend reinvestment or shareholder stock purchase plan, or (z) the satisfaction of the Corporation’s obligations pursuant to any contract relating to the foregoing clauses (x) or (y) outstanding at the beginning of the applicable Dividend Period requiring such purchase, redemption or other acquisition, |
| (D) | the purchase of fractional interests in shares of Junior Stock or Parity Stock, as the case may be, pursuant to the conversion or exchange provisions of such securities or the security being converted or exchanged, |
| (E) | through the use of the proceeds of a substantially contemporaneous sale of Junior Stock or Parity Stock, as applicable, or |
| (F) | in the case of Parity Stock, pro rata purchases, offers or other acquisitions for consideration by the Corporation to purchase all, or a pro rata portion of, the Series B Preferred Stock and such Parity Stock. |
When dividends are not paid (or declared and a sum sufficient for payment thereof set aside) in full on any Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within a Dividend Period) on the Series B Preferred Stock and any shares of Parity Stock, all dividends declared on the Series B Preferred Stock and all such Parity Stock and payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) shall be declared pro rata so that the respective amounts of such dividends shall bear the same ratio to each other as all accrued but unpaid dividends per share on the Series B Preferred Stock and all Parity Stock payable on such Dividend Payment Date (or, in the case of Parity Stock having dividend payment dates different from the Dividend Payment Dates, on a dividend payment date falling within the Dividend Period related to such Dividend Payment Date) bear to each other. As used in this paragraph, payment of dividends “in full” means, as to any Parity Stock that bears dividends on a cumulative basis, the amount of dividends that would need to be declared and paid to bring such Parity Stock current in dividends, including undeclared dividends for past dividend periods. To the extent a Dividend Period with respect to the Series B Preferred Stock or any shares of Parity Stock (in either case, the “first series”) coincides with more than one dividend period with respect to another series, as applicable (in either case, a “second series”), then, for purposes of this paragraph, the Board (or a duly authorized committee of the Board) may, to the extent permitted by the terms of each affected series, treat such dividend period for the first series as two or more consecutive dividend periods, none of which coincides with more than one dividend period with respect to the second series, or may treat such dividend period(s) with respect to any Parity Stock and Dividend Period(s) with respect to the Series B Preferred Stock for purposes of this paragraph in any other manner that it deems to be fair and equitable in order to achieve ratable payments of dividends on such Parity Stock and the Series B Preferred Stock.
Subject to the foregoing, and not otherwise, such dividends (payable in cash, stock or otherwise) as may be determined by the Board (or a duly authorized committee of the Board) may be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, and the Series B Preferred Stock shall not be entitled to participate in any such dividend.
Dividends on the Series B Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series B Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to shareholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series B Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $25,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends. Holders of the Series B Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series B Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series B Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series B Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series B Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series B Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series B Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption.
(a) Optional Redemption. The Series B Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem the shares of Series B Preferred Stock at the time outstanding upon notice given as provided in Section 7(c) below:
(i) in whole or in part, from time to time, on or after the First Call Date, at a redemption price equal to the stated amount of $25,000 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date,
(ii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Rating Agency Event, at a redemption price equal to $25,500 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series B Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date, or
(iii) in whole, but not in part, at any time prior to the First Call Date, within 90 days after the occurrence of a Regulatory Capital Event, at a redemption price equal to the stated amount of $25,000 per share of Series B Preferred Stock, plus (except as provided below) an amount equal to any declared but unpaid dividends and the portion of the quarterly dividend per share of Series B Preferred Stock attributable to the then-current Dividend Period that has not been declared and paid to, but excluding, the Redemption Date.
The redemption price for any shares of Series B Preferred Stock shall be payable on the Redemption Date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Corporation or its agent. Any declared but unpaid dividends payable on a Redemption Date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not constitute a part of or be paid to the holder entitled to receive the redemption price on the Redemption Date, but rather shall be paid to the holder of record of the redeemed shares on the Dividend Record Date relating to such Dividend Payment Date as provided in Section 5 above. Holders of the Series B Preferred Stock will have no right to require the redemption or repurchase of the Series B Preferred Stock.
(b) No Sinking Fund. The Series B Preferred Stock will not be subject to any mandatory redemption, sinking fund, retirement fund, purchase fund or other similar provisions.
(c) Notice of Redemption. Notice of every redemption of shares of Series B Preferred Stock shall be given by first-class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Corporation. Such mailing shall be not less than 30 days and not more than 60 days prior to the date fixed for redemption thereof. Any notice mailed as provided in this Section 7(c) shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Series B Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Series B Preferred Stock. Notwithstanding the foregoing, if the Series B Preferred Stock is held in book-entry form through DTC or any other similar facility, notice of redemption may be given to the holders of Series B Preferred Stock at such time and in any manner permitted by such facility.
Each such notice given to a holder shall state: (i) the Redemption Date; (ii) the number of shares of Series B Preferred Stock to be redeemed and, if less than all the shares of Series B Preferred Stock held by such holder are to be redeemed, the number of shares of such Series B Preferred Stock to be redeemed from such holder (if determinable at the time of such notice); (iii) the redemption price; (iv) if shares of Series B Preferred Stock are evidenced by definitive certificates, the place or places where holders may surrender certificates evidencing those shares of Series B Preferred Stock for payment of the redemption price; and (v) that dividends will not accrue for any period beginning on or after the Redemption Date.
(d) Partial Redemption. In case of any redemption of only part of the shares of Series B Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro rata, by lot or by such other method in accordance with the procedures of DTC. Subject to the provisions hereof, the Corporation shall have full power and authority to prescribe the terms and conditions upon which shares of Series B Preferred Stock shall be redeemed from time to time. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption. If notice of redemption has been duly given and if on or before the Redemption Date specified in the notice all funds necessary for the redemption have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares called for redemption, so as to be and continue to be available therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the Redemption Date (i) dividends shall not accrue on all shares so called for redemption for any period beginning on or after the Redemption Date, (ii) all shares so called for redemption shall no longer be deemed outstanding and (iii) all rights with respect to such shares shall forthwith on such Redemption Date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Any funds unclaimed at the end of two years from the Redemption Date, to the extent permitted by law, shall be released from the trust so established and may be commingled with other funds of the Corporation, and after that time the holders of the shares so called for redemption shall look only to the Corporation for payment of the redemption price of such shares.
8. Voting Rights.
(a) General. The holders of Series B Preferred Stock shall not have any voting rights except as set forth below or as otherwise from time to time required by law.
(b) Right to Elect Two Directors on Nonpayment of Dividends. Whenever dividends on any shares of Series B Preferred Stock shall have not been declared and paid for the equivalent of at least six Dividend Periods, whether or not for consecutive Dividend Periods (a “Nonpayment”), the holders of such shares of Series B Preferred Stock, voting together as a single class with holders of any and all other series of Voting Preferred Stock then outstanding, will be entitled to vote for the election of a total of two additional members of the Board (the “Preferred Stock Directors”), provided that the election of any such directors shall not cause the Corporation to violate the corporate governance requirement of the New York Stock Exchange (the “NYSE”) (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors and provided, further, that the Board shall at no time include more than two Preferred Stock Directors. In that event, the number of directors on the Board shall automatically increase by two, and the new directors shall be elected at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special meeting of shareholders), and at each subsequent annual meeting. These voting rights will continue until dividends on the shares of Series B Preferred Stock and any such series of Voting Preferred Stock for at least four consecutive dividend periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following the Nonpayment shall have been fully paid.
If and when dividends for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment have been paid in full, the holders of the Series B Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment) and, if such voting rights for all other holders of Voting Preferred Stock have terminated, the term of office of each Preferred Stock Director so elected shall immediately terminate and the number of directors on the Board shall automatically decrease by two. In determining whether dividends have been paid for at least four consecutive Dividend Periods (or the equivalent thereof, in the case of any other series of Voting Preferred Stock) following a Nonpayment, the Corporation may take account of any dividend the Corporation elects to pay for such a Dividend Period after the regular Dividend Payment Date for that period has passed. Any Preferred Stock Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of Series B Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Stock Director (other than prior to the initial election after a Nonpayment) may be filled by the written consent of the Preferred Stock Director remaining in office, or if none remains in office, by a vote of the holders of record of a majority of the outstanding Series B Preferred Stock and any other shares of Voting Preferred Stock then outstanding (voting together as a class) when they have the voting rights described above, provided that the filling of any such vacancy shall not cause the Corporation to violate the corporate governance requirement of the NYSE (or any other exchange on which the securities of the Corporation may be listed) that listed companies must have a majority of independent directors. Any such vote to remove, or to fill a vacancy in the office of, a Preferred Stock Director may be taken only at a special meeting called at the request of the holders of record of at least 20% of the Series B Preferred Stock or of any other series of Voting Preferred Stock (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special meeting of shareholders). The Preferred Stock Directors shall each be entitled to one vote per director on any matter.
(c) Other Voting Rights. So long as any shares of Series B Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required by law or by the Articles of Incorporation, the affirmative vote or consent of the holders of at least 66 2/3% of the shares of Series B Preferred Stock, voting separately as a class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock. Any amendment or alteration of the Articles of Incorporation to authorize or increase the authorized amount of, or issue any shares of any class or series or any obligation or securities convertible into shares of any class or series of the Corporation’s capital stock ranking senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation;
(ii) Amendment of Articles of Incorporation, Bylaws or Certificate of Designations. Any amendment, alteration or repeal of any provision of the Articles of Incorporation (including this Certificate of Designations) or the Bylaws that would alter or change the voting powers, preferences, privileges or special rights of the Series B Preferred Stock so as to affect them adversely; provided, however, that the amendment of the Articles of Incorporation so as to increase the amount of authorized or issued Series B Preferred Stock or authorized Common Stock or Preferred Stock, or so as to authorize or create, or to increase the authorized or issued amount of, any class or series of stock that does not rank senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation shall not be deemed to affect adversely the voting powers, preferences, privileges or special rights of the Series B Preferred Stock; or
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations and Other Transactions. Any consummation of (A) a binding share exchange or reclassification involving the Series B Preferred Stock, (B) a merger or consolidation of the Corporation with another entity (whether or not a corporation) or (C) a conversion, transfer, domestication or continuance of the Corporation into another entity or an entity organized under the laws of another jurisdiction, unless, in each case, (x) the shares of Series B Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity, or any such conversion, transfer, domestication or continuance, the shares of Series B Preferred Stock are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof, taken as a whole, as are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, and restrictions and limitations thereof, of the Series B Preferred Stock immediately prior to such consummation, taken as a whole.
If an amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance described above would materially and adversely affect one or more but not all series of Voting Preferred Stock (including the Series B Preferred Stock for this purpose), then only the series materially and adversely affected and entitled to vote shall vote to the exclusion of all other series of Preferred Stock. If all series of Preferred Stock are not equally affected by the proposed amendment, alteration, repeal, share exchange, reclassification, merger or consolidation, or conversion, transfer, domestication or continuance, described above, there shall be required a two-thirds approval of each series that will have a diminished status.
(d) Changes for Clarification. To the fullest extent permitted by law, without the consent of the holders of Series B Preferred Stock, so long as such action does not adversely affect the rights, preferences, privileges and voting powers of the Series B Preferred Stock, the Corporation may supplement any terms of the Series B Preferred Stock:
(i) to cure any ambiguity, or to cure, correct or supplement any provision contained in this Certificate of Designations that may be defective or inconsistent; or
(ii) to make any provision with respect to matters or questions arising with respect to the Series B Preferred Stock that is not inconsistent with the provisions of this Certificate of Designations.
(e) Changes After Provisions for Redemption. No vote or consent of the holders of Series B Preferred Stock shall be required pursuant to Sections 8(b) and (c) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to Sections 8(b) and (c), all outstanding shares of Series B Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been set aside for such redemption, in each case pursuant to Section 7 above, unless in the case of a vote or consent required to authorize stock ranking senior to the Series B Preferred Stock in the distribution of assets on any liquidation, dissolution or winding-up of the Corporation, if all outstanding shares of Series B Preferred Stock are being redeemed with the proceeds from the sale of such stock to be authorized.
(f) Procedures for Voting and Consents. The rules and procedures for calling and conducting any meeting of the holders of Series B Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board (or a duly authorized committee of the Board), in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles of Incorporation, the Bylaws, applicable law and any national securities exchange or other trading facility on which the Series B Preferred Stock is listed or traded at the time. Whether a plurality, majority or other portion of the Series B Preferred Stock and any Voting Preferred Stock has been voted in favor of any matter shall be determined by the Corporation by reference to the respective stated amounts of the shares of the Series B Preferred Stock and Voting Preferred Stock voted or covered by the consent.
9. Record Holders. To the fullest extent permitted by applicable law, the Corporation and the Transfer Agent for the Series B Preferred Stock may deem and treat the record holder of any share of Series B Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor such Transfer Agent shall be affected by any notice to the contrary.
10. Notices. All notices or communications in respect of Series B Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first-class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
11. No Conversion Rights. The Series B Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
12. No Preemptive Rights. No share of Series B Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
13. Other Rights. The shares of Series B Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
14. Certificates. The Corporation may, at its option, issue shares of Series B Preferred Stock without certificates. As long as DTC or its nominee is the registered owner of the Series B Preferred Stock, DTC or its nominee, as the case may be, will be considered the sole owner and holder of all shares of Series B Preferred Stock for all purposes under the instruments governing the rights and obligations of holders of shares of Series B Preferred Stock. If DTC discontinues providing its services as securities depositary with respect to the shares of Series B Preferred Stock, or if DTC ceases to be registered as a clearing agency under the Exchange Act, in the event that a successor securities depositary is not obtained within 90 days, the Corporation will either print and deliver certificates for the shares of Series B Preferred Stock or provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. If the Corporation decides to discontinue the use of the system of book-entry- only transfers through DTC (or a successor securities depositary), certificates for the shares of Series B Preferred Stock will be printed and delivered to DTC or the Corporation will provide for the direct registration of the Series B Preferred Stock with the Transfer Agent. Except in the limited circumstances referred to above, owners of beneficial interests in the Series B Preferred Stock:
(a) will not be entitled to have such Series B Preferred Stock registered in their names;
(b) will not receive or be entitled to receive physical delivery of securities certificates in exchange for beneficial interests in the Series B Preferred Stock; and
(c) will not be considered to be owners or holders of the shares of Series B Preferred Stock for any purpose under the instruments governing the rights and obligations of holders of shares of Series B Preferred Stock.
EXHIBIT C
CERTIFICATE OF DESIGNATIONS
OF
SERIES C PREFERRED STOCK
OF
AMERICAN NATIONAL GROUP INC.
In accordance with Article ELEVENTH of the Articles of Incorporation of American National Group Inc. (the “Corporation”), the voting powers, designations, preferences and relative, participating, option or other special rights, and the qualifications, limitations or restrictions of a series of preferred stock designated as “Preferred Stock, Series C” are expressed in this Certificate of Designations (the “Certificate of Designations”) as follows:
1. Designation. The distinctive serial designation of such series of preferred stock is “Preferred Stock, Series C” (the “Series C Preferred Stock”). Each share of Series C Preferred Stock shall be identical in all respects to every other share of Series C Preferred Stock.
2. Number of Shares. The authorized number of shares of Series C Preferred Stock shall be 1,877,500. Such number may from time to time be increased (but not in excess of the total number of authorized shares of preferred stock of the Corporation, less all shares of any other series of preferred stock authorized at the time of such increase) or decreased (but not below the number of shares of Series C Preferred Stock then outstanding) by the Board. The Corporation may at any time and from time to time, without notice to or the consent of holders of the Series C Preferred Stock, issue additional shares of Series C Preferred Stock that shall form a single series with the Series C Preferred Stock initially authorized hereby, provided that such additional shares of Series C Preferred Stock are fungible for U.S. federal income tax purposes with the Series C Preferred Stock authorized hereby. Shares of Series C Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation, or converted into another series of preferred stock, shall be cancelled and shall revert to authorized but unissued shares of preferred stock of the Corporation undesignated as to series.
3. Definitions. As used herein with respect to the Series C Preferred Stock:
(a) “Articles of Incorporation” shall mean the articles of incorporation of the Corporation, as the same may be amended or restated from time to time, and shall include this Certificate of Designations.
(b) “Board” shall mean the Board of Directors of the Corporation.
(c) “Bylaws” means the Bylaws of the Corporation, effective as of May 7, 2024, as the same may be amended or restated from time to time.
(d) “Certificate of Designations” has the meaning specified in the preamble.
(e) “Common Stock” means the common stock, par value $0.01 per share, of the Corporation.
(f) “Junior Stock” means the Common Stock and any other class or series of stock of the Corporation that ranks junior to the Series C Preferred Stock as to the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(g) “Liquidation Preference” has the meaning specified in Section 6(b).
(h) “Parity Stock” means the Series A Preferred Stock, Series B Preferred Stock and any other class or series of the Corporation’s stock that ranks equally with the Series C Preferred Stock in the distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
(i) “Series A Preferred Stock” means the Corporation’s 5.95% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series A.
(j) “Series B Preferred Stock” means the Corporation’s 6.625% Fixed-Rate Reset Non-Cumulative Preferred Stock, Series B.
4. Ranking. With respect to the distribution of assets upon the liquidation, dissolution or winding-up of the Corporation, the Series C Preferred Stock will rank in right of payment: (a) senior to any Junior Stock; and (b) equally with any Parity Stock that the Corporation may issue (except for any senior series that may be issued with the requisite vote or consent of the holders of at least 66 2/3% of the shares of the Series C Preferred Stock at the time outstanding and entitled to vote) with respect to any distribution of assets upon the Corporation’s liquidation, dissolution or winding-up.
5. Dividends. Dividends on the Series C Preferred Stock will not be mandatory. Holders of shares of Series C Preferred Stock shall be entitled to receive such dividends and other distributions (payable in cash or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.
If any dividends (payable in cash, property, stock or otherwise) are determined by the Board (or a duly authorized committee of the Board) to be declared and paid on the Common Stock or any other shares of Junior Stock from time to time out of any funds legally available for such payment, the Series C Preferred Stock shall be entitled to participate in any such dividend.
Dividends on the Series C Preferred Stock will not be declared, paid or set aside for payment if the Corporation fails to comply, or if such act would cause the Corporation to fail to comply, with applicable laws, rules and regulations.
6. Liquidation Rights.
(a) Voluntary or Involuntary Liquidation. In the event of any liquidation, dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary, holders of Series C Preferred Stock and any Parity Stock shall be entitled to receive, out of the assets of the Corporation available for distribution to stockholders of the Corporation, after satisfaction of liabilities to creditors of the Corporation and any required distributions to holders of stock, if any, that ranks senior to the Series C Preferred Stock in the distribution of assets upon liquidation, dissolution or winding-up but before any distribution of assets is made to holders of Common Stock and any other Junior Stock, a liquidating distribution equal to the stated amount of $1,000 per share plus declared but unpaid dividends, without accumulation of any undeclared dividends. Holders of the Series C Preferred Stock shall not be entitled to any other amounts from the Corporation after they have received their full liquidation preference.
(b) Partial Payment. If in any distribution described in Section 6(a) above the assets of the Corporation are not sufficient to pay the Liquidation Preferences (as defined below) in full to all holders of Series C Preferred Stock and all holders of any Parity Stock, the amounts paid to the holders of Series C Preferred Stock and to the holders of all such other Parity Stock shall be paid pro rata in accordance with the respective aggregate Liquidation Preferences of the holders of Series C Preferred Stock and the holders of all such other Parity Stock. In any such distribution, the “Liquidation Preference” of any holder of Series C Preferred Stock or Parity Stock shall mean the amount otherwise payable to such holder in such distribution (assuming no limitation on the assets of the Corporation available for such distribution), including an amount equal to any declared but unpaid dividends (and, in the case of any holder of stock on which dividends accrue on a cumulative basis, an amount equal to any unpaid, accrued cumulative dividends, whether or not declared, as applicable).
(c) Residual Distributions. If the Liquidation Preference has been paid in full to all holders of Series C Preferred Stock and any Parity Stock, the holders of Junior Stock of the Corporation shall be entitled to receive all remaining assets of the Corporation (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Not Liquidation. For purposes of this Section 6, the merger or consolidation of the Corporation with any other corporation or other entity, including a merger or consolidation in which the holders of Series C Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Corporation, shall not constitute a liquidation, dissolution or winding-up of the Corporation.
7. Redemption. The Series C Preferred Stock is perpetual and has no maturity date. The Corporation may, at its option, redeem all, or a portion of, the shares of Series C Preferred Stock then outstanding, at any time, at a redemption price equal to the stated amount of $1,000 per share of Series C Preferred Stock. Upon such redemption, (a) all shares so called for redemption shall no longer be deemed outstanding and (b) all rights with respect to such shares shall forthwith on the date of such redemption cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption, without interest. Holders of the shares of Series C Preferred Stock will have no right to require the redemption or repurchase of the shares of Series C Preferred Stock. No redemption of the shares of Series C Preferred Stock will be consummated unless the full dividend has been declared and paid (or declared and a sum sufficient for the payment thereof has been set aside) on all outstanding shares of Parity Stock for the latest completed dividend period for such shares of Parity Stock.
8. Voting Rights. The holders of Series C Preferred Stock shall not have any voting rights except as otherwise from time to time required by law.
9. Notices. All notices or communications in respect of Series C Preferred Stock shall be sufficiently given if given in writing or if given in such other manner as may be permitted in this Certificate of Designations, in the Articles of Incorporation, in the Bylaws or by applicable law.
10. Conversion Rights. The Series C Preferred Stock shall not be convertible into, or exchangeable for, shares of Common Stock or any other class or series of stock or other securities of the Corporation.
11. No Preemptive Rights. No share of Series C Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Corporation, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
12. Other Rights. The shares of Series C Preferred Stock shall not have any voting powers, preferences or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles of Incorporation or as provided by applicable law.
13. Certificates. The Corporation may, at its option, issue shares of Series C Preferred Stock without certificates.
Exhibit 3.3
BYLAWS
OF
AMERICAN NATIONAL GROUP INC.
(a Delaware Corporation)
(hereinafter
referred to as the “Corporation”)
ARTICLE I
MEETING OF Stockholders; STOCKHOLDERS’ CONSENT IN LIEU OF MEETING
SECTION 1.01. Annual Meeting. The annual meeting of the stockholders for the election of directors, and for the transaction of such other business as may properly come before the meeting, shall be held at such place, date and hour as shall be fixed by the Board of Directors and designated in the notice or waiver of notice thereof; except that no annual meeting need be held if all actions, including the election of directors, required by the General Corporation Law of the State of Delaware to be taken at a stockholders’ annual meeting are taken by written consent in lieu of a meeting pursuant to Section 1.03 of these Bylaws.
SECTION 1.02. Special Meetings. A special meeting of the stockholders for any purpose or purposes may be called by the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation or a stockholder or stockholders holding of record at least a majority of the shares of common stock, par value $0.01 per share, of the Corporation (“Common Stock”) issued and outstanding, such meeting to be held at such place, date and hour as shall be designated in the notice or waiver of notice thereof.
SECTION 1.03. Stockholders’ Consent in Lieu of Meeting. Any action required by the General Corporation Law of the State of Delaware to be taken at any annual or special meeting of the stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by all the stockholders.
SECTION 1.04. Quorum and Adjournment. Except as otherwise provided by law, by the Certificate of Incorporation of the Corporation or by these Bylaws, the presence, in person or by proxy, of the holders of a majority of the aggregate voting power of the stock issued and outstanding, entitled to vote thereat, shall be requisite for and shall constitute a quorum for the transaction of business at all meetings of stockholders. If, however, such a quorum shall not be present in person or represented by proxy at any meeting of stockholders, the stockholders present, although less than a quorum, shall have the power to adjourn the meeting.
SECTION 1.05. Majority Vote Required. When a quorum is present at any meeting of stockholders, the affirmative vote of the majority of the aggregate voting power of the shares of stock present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall constitute the act of the stockholders, unless by express provision of law, the Certificate of Incorporation of the Corporation or these Bylaws a different vote is required, in which case such express provision shall govern and control.
SECTION 1.06. Manner of Voting. At each meeting of stockholders, each stockholder having the right to vote shall be entitled to vote in person or by proxy. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed before being voted. Each stockholder shall be entitled to vote each share of stock having voting power registered in his or her name on the books of the Corporation on the record date fixed, as provided in Section 6.07 of these Bylaws, for the determination of stockholders entitled to vote at such meeting. No election of directors need be by written ballot.
ARTICLE II
Board of Directors
SECTION 2.01. General Powers. The management of the affairs of the Corporation shall be vested in the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by law or by the Certificate of Incorporation of the Corporation directed or required to be exercised or done by the stockholders. The Board of Directors may authorize any officer or officers, agent or agents, to enter into any contract or to execute and deliver any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific circumstance.
SECTION 2.02. Number and Term of Office. The number of directors which shall constitute the whole Board of Directors shall consist of one to ten individuals, the exact number of directors to be determined from time to time by the stockholders of the Corporation. The term “whole Board of Directors” is used herein to refer to the total number of directors which the Corporation would have if there were no vacancies. Directors need not be stockholders. No director is required to be an officer or employee of the Corporation or a resident of the State of Delaware. Each director shall hold office until his or her successor is elected and qualified, or until his or her earlier death or resignation or removal in the manner hereinafter provided.
SECTION 2.03. Resignation, Removal and Vacancies. Any director may resign at any time by giving written notice of his or her resignation to the Board of Directors, the Chairman of the Board of Directors, the President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein or, if the time is not specified, upon receipt thereof; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Any director or the entire Board of Directors may be removed, with or without cause, at any time by the holders of a majority of the shares of stock then entitled to vote at an election of directors or by written consent of the stockholders pursuant to Section 1.03 of these Bylaws.
Vacancies in the Board of Directors and newly created directorships resulting from any increase in the authorized number of directors may be filled by (a) a majority of the directors then in office, although less than a quorum, (b) a sole remaining director or (c) written consent of the stockholders pursuant to Section 1.03 of these Bylaws.
SECTION 2.04. Chairman of the Board of Directors. If there shall be a Chairman of the Board of Directors, he or she shall preside at meetings of the Board of Directors and of the stockholders at which he or she is present, and shall give counsel and advice to the Board of Directors and the officers of the Corporation on all subjects touching the welfare of the Corporation and the conduct of its business. He or she shall perform such other duties as the Board of Directors may from time to time determine. Except as otherwise provided by resolution of the Board of Directors he or she shall be ex officio a member of all committees of the Board of Directors.
SECTION 2.05. Meetings. (a) Annual Meeting. As soon as practicable after each annual election of directors, the Board of Directors shall meet for the purpose of organization and the transaction of other business, unless it shall have transacted all such business by written consent pursuant to Section 2.06 of these Bylaws.
(b) Other Meetings. Other meetings of the Board of Directors shall be held at such times and places as the Board of Directors, the Chairman of the Board of Directors or the President shall from time to time determine.
(c) Notice of Meetings. The Secretary of the Corporation shall give notice to each director of each meeting, including the time, place and purpose of such meeting. Notice of each such meeting shall be mailed to each director, addressed to him or her at his or her residence or usual place of business, at least two days before the day on which such meeting is to be held, or shall be sent to him or her at such place by telegraph, cable, wireless or other form of recorded communication, or be delivered personally or by telephone not later than the day before the day on which such meeting is to be held, but notice need not be given to any director who shall attend such meeting. A written waiver of notice, signed by the person entitled thereto, whether before or after the time of the meeting stated therein, shall be deemed equivalent to notice.
(d) Place of Meetings. The Board of Directors may hold its meetings at such place or places within or without the State of Delaware as the Board of Directors may from time to time determine, or as shall be designated in the respective notices or waivers of notice thereof.
(e) Quorum and Manner of Acting. One third of the total number of directors then in office (but not less than one) shall be present in person at any meeting of the Board of Directors in order to constitute a quorum for the transaction of business at such meeting, and the vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board of Directors, except as otherwise expressly required by law or these Bylaws. In the absence of a quorum for any such meeting, a majority of the directors present thereat may adjourn such meeting from time to time until a quorum shall be present.
(f) Organization. At each meeting of the Board of Directors, one of the following shall act as chairman of the meeting and preside, in the following order of precedence:
(i) the Chairman of the Board of Directors;
(ii) the President (if the President shall be a member of the Board of Directors at such time); and
(iii) any director chosen by a majority of the directors present.
The Secretary of the Corporation or, in the case of his or her absence, any person (who shall be an Assistant Secretary of the Corporation, if an Assistant Secretary of the Corporation is present) whom the Chairman of the Board of Directors shall appoint shall act as secretary of such meeting and keep the minutes thereof.
SECTION 2.06. Directors’ Consent in Lieu of Meeting. Action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing and the writing or writings are filed with the minutes or the proceedings of the Board of Directors or committee.
SECTION 2.07. Action by Means of Conference Telephone or Similar Communications Equipment. Any one or more members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or any such committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
ARTICLE III
Committees
of the Board
SECTION 3.01. The Board of Directors, by the affirmative vote of a majority of the whole Board of Directors, may establish one or more other committees, including an executive committee, each committee to consist of one or more persons, who need not be directors, appointed by the Board of Directors. Each such committee shall have the authority and duties delegated to it by the Board of Directors, subject to any limitations set forth in any then-established committee such as an executive committee. The Board of Directors shall have power at any time to change the members of any such committee, designate alternate members of any such committee and fill vacancies therein; and any such committee shall serve at the pleasure of the Board of Directors. Each such committee shall fix its own rules governing the conduct of its activities except as the Board of Directors may require or restrict or to the extent required or restricted by the terms of any then-established committee such as an executive committee.
ARTICLE IV
Officers
SECTION 4.01. Executive Officers. The executive officers of the Corporation shall be a President, a Secretary and a Chief Financial Officer and may include a Chairman of the Board of Directors, one or more Vice Presidents and one or more Assistant Secretaries or Assistant Chief Financial Officers. The Board of Directors may also elect or appoint such other officers and agents as may from time to time appear to be necessary or advisable in the conduct of the affairs of the Corporation. Any two or more offices may be held by the same person.
SECTION 4.02. Authority and Duties. All officers, as between themselves and the Corporation, shall have such authority and perform such duties in the management of the Corporation as may be provided in these Bylaws or, to the extent not so provided, by the Board of Directors.
SECTION 4.03. Term of Office, Resignation and Removal. All officers shall be elected or appointed by the Board of Directors and shall hold office for such term as may be prescribed by the Board of Directors. The Chairman of the Board of Directors, if any, shall be elected or appointed from among the members of the Board of Directors. Each officer shall hold office until his or her successor has been elected or appointed and qualified or his or her earlier death or resignation or removal in the manner hereinafter provided. The Board of Directors may require any officer to give security for the faithful performance of his or her duties.
Any officer may resign at any time by giving written notice to the President or the Secretary of the Corporation, and such resignation shall take effect at the time specified therein or, if the time when it shall become effective is not specified therein, at the time it is accepted by action of the Board of Directors. Except as aforesaid, the acceptance of such resignation shall not be necessary to make it effective.
All officers and agents elected or appointed by the Board of Directors shall be subject to removal at any time by the Board of Directors with or without cause.
SECTION 4.04. Vacancies. If an office becomes vacant for any reason, the Board of Directors shall fill such vacancy. Any officer so appointed or elected by the Board of Directors shall serve only until such time as the unexpired term of his or her predecessor shall have expired unless reelected or reappointed by the Board of Directors.
SECTION 4.05. The President. The President shall be the Chief Executive Officer of the Corporation and, unless the Chairman of the Board of Directors is present or the Board of Directors has provided otherwise by resolution, he or she shall preside at all meetings of the Board of Directors and the stockholders at which he or she is present except, in the case of a meeting of the Board of Directors, if the President is not a member of the Board of Directors at such time. He or she shall have general and active management and control of the business and affairs of the Corporation subject to the control of the Board of Directors and the Executive Committee, if any, and shall see that all orders and resolutions of the Board of Directors and the Executive Committee, if any, are carried into effect.
SECTION 4.06. Vice Presidents. The Vice President of the Corporation, if any, or if there be more than one, the Vice Presidents in the order of their seniority or in any other order determined by the Board of Directors, shall, in the absence or disability of the President, perform the duties and exercise the powers of the President, and shall generally assist the President and perform such other duties as the Board of Directors or the President shall prescribe.
SECTION 4.07. The Secretary. The Secretary of the Corporation shall, to the extent practicable, attend all meetings of the Board of Directors and all meetings of the stockholders and shall record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for the standing committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President, under whose supervision he or she shall perform such duties. He or she shall keep in safe custody the seal of the Corporation and affix the same to any duly authorized instrument requiring it and, when so affixed, it shall be attested by his or her signature or by the signature of the Chief Financial Officer or an Assistant Secretary or Assistant Chief Financial Officer. He or she shall keep in safe custody the certificate books and stockholder records and such other books and records as the Board of Directors may direct and shall perform all other duties as from time to time may be assigned to him or her by the Chairman of the Board of Directors, the President or the Board of Directors.
SECTION 4.08. Assistant Secretaries. The Assistant Secretary of the Corporation, if any, or if there be more than one, the Assistant Secretaries in order of their seniority or in any other order determined by the Board of Directors shall, in the absence or disability of the Secretary of the Corporation, perform the duties and exercise the powers of the Secretary of the Corporation and shall perform such other duties as the Board of Directors or the Secretary of the Corporation shall prescribe.
SECTION 4.09. The Chief Financial Officer. The Chief Financial Officer shall have the care and custody of the corporate funds and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all moneys and other valuable effects to the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Chief Financial Officer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and directors, at the regular meetings of the Board of Directors, or whenever they may require it, an account of all his or her transactions as Chief Financial Officer and of the financial condition of the Corporation; and, in general, perform all the duties incident to the office of Chief Financial Officer and such other duties as from time to time may be assigned to him or her by the President or the Board of Directors.
SECTION 4.10. Assistant Chief Financial Officers. The Assistant Chief Financial Officer of the Corporation, if any, or if there be more than one, the Assistant Chief Financial Officers in the order of their seniority or in any other order determined by the Board of Directors, shall in the absence or disability of the Chief Financial Officer perform the duties and exercise the powers of the Chief Financial Officer and shall perform such other duties as the Board of Directors or the Chief Financial Officer shall prescribe.
ARTICLE V
Contracts, Checks, Drafts, Bank Accounts, etc.
SECTION 5.01. Execution of Documents. The Board of Directors shall designate the officers, employees and agents of the Corporation who shall have power to execute and deliver deeds, contracts, mortgages, bonds, debentures, checks, drafts and other orders for the payment of money and other documents for and in the name of the Corporation, and may authorize such officers, employees and agents to delegate such power (including authority to redelegate) by written instrument to other officers, employees or agents of the Corporation; and, unless so designated or expressly authorized by these Bylaws, no officer or agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable pecuniarily for any purpose or to any amount.
SECTION 5.02. Deposits. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation or otherwise as the Board of Directors or Chief Financial Officer or any other officer of the Corporation to whom power in this respect shall have been given by the Board of Directors shall select.
SECTION
5.03. Proxies in Respect of Stock or Other Securities of Other Corporations. The Board of Directors shall designate the
officers of the Corporation who shall have authority from time to time to appoint an agent or agents of the Corporation to exercise in
the name and on behalf of the Corporation the powers and rights which the Corporation may have as the holder of stock or other securities
in any other corporation, and to vote or consent in respect of such stock or securities; such designated officers may instruct the person
or persons so appointed as to the manner of exercising such powers and rights; and such designated officers may execute or cause to be
executed in the name and on behalf of the Corporation and under its corporate seal, or otherwise, such written proxies, powers of attorney
or other instruments as they may deem necessary or proper in order that the Corporation may exercise its said powers and rights.
ARTICLE VI
CAPITAL STOCK
SECTION 6.01. Certificates for Shares of Stock. Every owner of stock of the Corporation shall be entitled to have a certificate certifying the number and class of shares owned by him or her in the stock of the Corporation, which shall otherwise be in such form as shall be prescribed by the Board of Directors. Certificates of each class shall be issued in consecutive order and shall be numbered in the order of their issue, and shall be signed by, or in the name of the Corporation by the Chairman of the Board of Directors, the President or a Vice President and by the Chief Financial Officer or an Assistant Chief Financial Officer or the Secretary or an Assistant Secretary of the Corporation.
SECTION 6.02. Record. A record (herein called the “Stock Record”) in one or more counterparts shall be kept of the name of the person, firm or corporation owning the shares of stock represented by each certificate for stock of the Corporation issued, the number of shares of stock represented by each such certificate, the date thereof and, in the case of cancelation, the date of cancelation. Except as otherwise expressly required by law, the person, firm or corporation in whose name shares of stock stand on the Stock Record of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation.
SECTION 6.03. Registration of Stock. Registration of transfers of shares of stock of the Corporation shall be made only on the books of the Corporation upon request of the registered holder thereof, or of his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation, and upon the surrender of the certificate or certificates for such shares of stock properly endorsed or accompanied by a stock power duly executed.
SECTION 6.04. Addresses of Stockholders. Each stockholder shall designate to the Secretary of the Corporation an address at which notices of meetings and all other corporate notices may be served or mailed to him or her, and, if any stockholder shall fail to designate such address, corporate notices may be served upon him or her by mail directed to him or her at his or her post office address, if any, as the same appears on the stock record books of the Corporation or at his or her last known post office address.
SECTION 6.05. Lost, Destroyed and Mutilated Certificates. The Board of Directors or a committee designated thereby with power so to act may, in its discretion, cause to be issued a new certificate or certificates for stock of the Corporation in place of any certificate issued by it and reported to have been lost, destroyed or mutilated, upon the surrender of the mutilated certificates or, in the case of loss or destruction of the certificate, upon satisfactory proof of such loss or destruction, and the Board of Directors or such committee may, in its discretion, require the owner of the lost or destroyed certificate or his or her legal representative to give the Corporation a bond in such sum and with such surety or sureties as it may direct to indemnify the Corporation against any claim that may be made against it on account of the alleged loss or destruction of any such certificate.
SECTION 6.06. Regulations. The Board of Directors may make such rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of certificates for stock of the Corporation.
SECTION 6.07. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 70 nor less than 10 days before the date of such meeting, nor more than 70 days prior to any other action. A determination of stockholders entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE VII
Fiscal Year
SECTION 7.01. The fiscal year of the Corporation shall end on the 31st day of December in each year unless changed by resolution of the Board of Directors.
ARTICLE VIII
Indemnification and Insurance
SECTION 8.01. Indemnification. (a) (i) Any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, his or her testator or his or her intestate is or was a director, officer, employee or agent of the Corporation or any corporation which consolidates or merges with or into the Corporation and which if its separate existence had continued would have had power and authority to indemnify such person (a “Predecessor”), shall be indemnified by the Corporation and (ii) any person made, or threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that he or she, his or her testator or his or her intestate is or was serving as a director, officer, employee or agent at the request of the Corporation, of any other corporation or any partnership, joint venture, trust or other enterprise (an “Affiliate”), may, at the discretion of the Board of Directors, be indemnified by the Corporation, in each case, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, or in connection with any appeal therein; provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, Predecessor or Affiliate, as the case may be, or with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; except, in the case of an action, suit or proceeding by or in the right of the Corporation in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such director, officer, employee or agent is liable for negligence or misconduct in the performance of his or her duties, unless a court of competent jurisdiction shall determine that, despite such adjudication, such person is fairly and reasonably entitled to indemnification.
(b) Without limitation of any right conferred by paragraph (a) of this Section 8.01, (i) any person made, or threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she, his or her testator or his or her intestate is or was a director, officer, employee or agent of the Corporation or a Predecessor and is or was serving as a fiduciary of, or otherwise rendering services to, any employee benefit plan of, or relating to the Corporation or a Predecessor, shall be indemnified by the Corporation, and (ii) any person made, or threatened to be made, a party to such an action, suit or proceeding, by reason of the fact that he or she, his or her testator or his or her intestate is or was serving as a director, officer, employee or agent at the request of the Corporation or an Affiliate, and is or was serving as a fiduciary of, or otherwise rendering services to, any employee benefit plan of, or relating to such Affiliate, may, at the discretion of the Board of Directors, be indemnified by the Corporation, in each case, against expenses (including attorneys’ fees), judgments, fines, excise taxes and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, or in connection with any appeal therein; provided that such person acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the Corporation, Predecessor or Affiliate, as the case may be, or with respect to a criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; except in the case of an action, suit or proceeding by or in the right of the Corporation in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such director, officer, employee or agent is liable for negligence or misconduct in the performance of his or her duties, unless a court of competent jurisdiction shall determine that, despite such adjudication, such person is fairly and reasonably entitled to indemnification.
The rights to indemnification and to the advance of expenses conferred in this Section 8.01 shall not be exclusive of any other right which any person may have or hereafter acquire under the Certificate of Incorporation or under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
SECTION 8.02. Insurance for Indemnification. The Corporation may purchase and maintain insurance for the indemnification of the Corporation and the directors, officers, employees and agents of the Corporation to the full extent and in the manner permitted by the applicable laws of the United States and the State of Delaware from time to time in effect.
ARTICLE IX
Waiver of Notice
SECTION 9.01. Whenever any notice is required to be given by these Bylaws or the Certificate of Incorporation of the Corporation or the General Corporation Law of the State of Delaware, the person entitled thereto may, in person or by attorney thereunto authorized, in writing or other form of recorded communication, waive such notice, whether before or after the meeting or other matter in respect of which such notice is given, and in such event such notice need not be given to such person and such waiver shall be deemed equivalent to such notice.
ARTICLE X
Amendments
SECTION 10.01. Any Bylaw (including these Bylaws) may be adopted, amended or repealed by the Board of Directors or by the stockholders in any manner not inconsistent with the terms of any preferred stock of the Corporation then-outstanding, the General Corporation Law of the State of Delaware or the Certificate of Incorporation of the Corporation.
Exhibit 4.1
American National Group, Inc.,
as Issuer,
and
Wilmington Trust, National Association,
as Trustee
INDENTURE
Dated as of June 13, 2022
$ 500,000,000 6.144% Senior Notes due 2032
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
| Section 1.1. | Definitions | 1 |
| Section 1.2. | Compliance Certificates and Opinions | 9 |
| Section 1.3. | Form of Documents Delivered to Trustee | 9 |
| Section 1.4. | Acts of Holders; Record Dates | 10 |
| Section 1.5. | Notices, Etc., to Trustee or the Company | 13 |
| Section 1.6. | Notice to Holders; Waiver | 13 |
| Section 1.7. | Effect of Headings and Table of Contents | 14 |
| Section 1.8. | Successors and Assigns | 14 |
| Section 1.9. | Separability Clause | 14 |
| Section 1.10. | Benefits of Indenture | 14 |
| Section 1.11. | Governing Law | 14 |
| Section 1.12. | Submission to Jurisdiction | 14 |
| Section 1.13. | Legal Holidays | 14 |
| Section 1.14. | No Personal Liability of Directors, Officers, Employees, Incorporators, Authorized Persons and Stockholders | 15 |
| Section 1.15. | Annexes, Exhibits and Schedules | 15 |
| Section 1.16. | Waiver of Jury Trial | 15 |
| Section 1.17. | Electronic Communications; Electronic Signatures | 15 |
ARTICLE II
THE SECURITIES
| Section 2.1. | Issuable in Series; Additional Securities | 16 |
| Section 2.2. | Forms and Dating; Terms | 16 |
| Section 2.3. | Execution, Authentication, Delivery and Dating | 18 |
| Section 2.4. | Temporary Securities | 19 |
| Section 2.5. | Registration; Transfer and Exchange | 20 |
| Section 2.6. | Mutilated, Destroyed, Lost and Stolen Securities | 22 |
| Section 2.7. | Payment of Interest; Interest Rights Preserved | 23 |
| Section 2.8. | Persons Deemed Owners | 24 |
| Section 2.9. | Cancellation | 24 |
| Section 2.10. | Computation of Interest | 25 |
| Section 2.11. | CUSIP Numbers, ISINs, Etc | 25 |
| Section 2.12. | Book-Entry Provisions for Global Securities | 25 |
| Section 2.13. | Special Transfer Provisions | 27 |
| Section 2.14. | Restrictive and Global Security Legends | 29 |
i
ARTICLE III
REDEMPTION OF SECURITIES
| Section 3.1. | Applicability of Article | 31 |
| Section 3.2. | Election to Redeem; Notice to Trustee | 32 |
| Section 3.3. | Selection by Trustee of Securities to Be Redeemed | 32 |
| Section 3.4. | Notice of Redemption | 32 |
| Section 3.5. | Deposit of Redemption Price | 33 |
| Section 3.6. | Securities Payable on Redemption Date | 33 |
| Section 3.7. | Securities Redeemed in Part | 34 |
| Section 3.8. | Optional Redemption | 34 |
ARTICLE IV
SINKING FUNDS
| Section 4.1. | Sinking Fund; Holder Repurchase Right | 35 |
ARTICLE V
COVENANTS
| Section 5.1. | Payment of Principal, Premium and Interest | 35 |
| Section 5.2. | Maintenance of Office or Agency | 36 |
| Section 5.3. | Money for Securities Payments to Be Held in Trust | 36 |
| Section 5.4. | Corporate Existence | 37 |
| Section 5.5. | Annual Statement by Officer as to Default | 38 |
| Section 5.6. | Provision of Information; Reports by Company | 38 |
| Section 5.7. | Limitations on Liens | 39 |
ARTICLE VI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
| Section 6.1. | Company May Consolidate, Etc., Only on Certain Terms | 39 |
| Section 6.2. | Exception | 40 |
| Section 6.3. | Successor Company Substituted | 40 |
ARTICLE VII
REMEDIES
| Section 7.1. | Events of Default | 40 |
| Section 7.2. | Acceleration of Maturity; Rescission and Annulment | 42 |
| Section 7.3. | Trustee May File Proofs of Claim | 43 |
| Section 7.4. | Trustee May Enforce Claims without Possession of Securities | 43 |
| Section 7.5. | Application of Money Collected | 44 |
ii
| Section 7.6. | Limitation on Suits | 44 |
| Section 7.7. | Unconditional Right of Holders to Receive Principal, Premium and Interest | 45 |
| Section 7.8. | Restoration of Rights and Remedies | 45 |
| Section 7.9. | Rights and Remedies Cumulative | 45 |
| Section 7.10. | Delay or Omission Not Waiver | 45 |
| Section 7.11. | Control by Holders | 45 |
| Section 7.12. | Waiver of Past Defaults | 46 |
| Section 7.13. | Undertaking for Costs | 46 |
| Section 7.14. | Waiver of Usury, Stay or Extension Laws | 47 |
ARTICLE VIII
THE TRUSTEE
| Section 8.1. | Certain Duties and Responsibilities | 47 |
| Section 8.2. | Notice of Defaults | 48 |
| Section 8.3. | Certain Rights of Trustee | 48 |
| Section 8.4. | Not Responsible for Issuance of Securities; Indenture | 50 |
| Section 8.5. | May Hold Securities | 50 |
| Section 8.6. | Money Held in Trust | 50 |
| Section 8.7. | Compensation and Reimbursement | 51 |
| Section 8.8. | Disqualification; Conflicting Interests | 51 |
| Section 8.9. | Corporate Trustee Required; Eligibility | 52 |
| Section 8.10. | Resignation and Removal; Appointment of Successor | 52 |
| Section 8.11. | Acceptance of Appointment by Successor | 53 |
| Section 8.12. | Merger, Conversion, Consolidation or Succession to Business | 55 |
| Section 8.13. | Preferential Collection of Claims | 55 |
| Section 8.14. | Appointment of Authenticating Agent | 55 |
| Section 8.15. | Consequential Damages | 56 |
| Section 8.16. | [Reserved] | 56 |
| Section 8.17. | Force Majeure | 57 |
| Section 8.18. | USA PATRIOT Act | 57 |
ARTICLE IX
HOLDERS’ LISTS AND REPORTS BY TRUSTEE
| Section 9.1. | Company to Furnish Trustee Names and Addresses of Holders | 57 |
| Section 9.2. | Preservation of Information; Communications to Holders | 57 |
ARTICLE X
SUPPLEMENTAL INDENTURES
| Section 10.1. | Supplemental Indentures without Consent of Holders | 58 |
| Section 10.2. | Supplemental Indentures with Consent of Holders | 59 |
iii
| Section 10.3. | Execution of Amendments, Supplements or Waiver | 60 |
| Section 10.4. | Effect of Supplemental Indentures | 60 |
| Section 10.5. | Conformity with Trust Indenture Act | 61 |
| Section 10.6. | Reference in Securities to Supplemental Indentures | 61 |
ARTICLE XI
SATISFACTION AND DISCHARGE; DEFEASANCE
| Section 11.1. | Satisfaction and Discharge of Indenture | 61 |
| Section 11.2. | Company’s Option to Effect Defeasance or Covenant Defeasance | 63 |
| Section 11.3. | Defeasance and Discharge | 63 |
| Section 11.4. | Covenant Defeasance | 63 |
| Section 11.5. | Conditions to Defeasance or Covenant Defeasance | 64 |
| Section 11.6. | Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions | 65 |
| Section 11.7. | Reinstatement | 66 |
| Section 11.8. | Repayment to the Company | 66 |
Annex A Form of Security
iv
This Indenture, dated as of June 13, 2022, is entered into by and among American National Group, Inc., a Delaware corporation (the “Company”) as the issuer, and Wilmington Trust, National Association, as Trustee (the “Trustee”).
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of $500,000,000 aggregate principal amount of 6.144% Senior Notes due 2032 (the “Initial Securities”), as provided in this Indenture;
WHEREAS, all things necessary have been done to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms.
NOW, THEREFORE, for and in consideration of the premises and the purchase of the Initial Securities by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the equal and proportionate benefit of all Holders of the Securities:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article I have the respective meanings assigned to them in this Article I and include the plural as well as the singular;
(2) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the respective meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the respective meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term “generally accepted accounting principles” with respect to any computation required in the United States of America or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;
(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(5) references to Sections are to Sections of this Indenture unless otherwise expressly indicated.
“Act,” when used with respect to any Holder, has the meaning set forth in Section 1.4(a).
“Additional Securities” means additional Securities of any series (other than the Initial Securities) issued from time to time under this Indenture in accordance with Sections 2.1 and 2.2 of this Indenture (whether or not such Securities have the same CUSIP number or ISIN).
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control with, such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Member” means a member of, or participant in, the Depositary.
“Authenticating Agent” means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Securities.
“Board of Directors” means either the Board of Directors of the Company or any committee of such Board of Directors duly authorized to act on its behalf.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in the City of New York or in the jurisdiction of the Place of Payment are authorized or obligated by law or executive order to close or be closed.
“Clearstream” means Clearstream Banking, S.A., or any successor securities clearing agency.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by any Officer.
“Corporate Trust Office” means the designated office of the Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the date hereof is located at Wilmington Trust, National Association, 1100 North Market Street, Wilmington, Delaware 19890, Attention: American National Group Notes Administrator, or such other address as the Trustee may designate from time to time by notice to the Company, or the designated corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Company).
2
The terms “covenant defeasance” and “defeasance” bear the meanings assigned to such terms, respectively, by Sections 11.4 and 11.3.
The term “default,” when used in Sections 5.5, 8.2 and/or 8.3, has the meaning specified in Section 8.2.
“Defaulted Interest” has the meaning set forth in Section 2.7(b).
“Depositary” means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Global Securities, the Person designated as Depositary for such series by the Company pursuant to Section 2.1(b)(15), which Person shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such Person, “Depositary” as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear System, or any successor securities clearing agency.
“Event of Default” has the meaning set forth in Section 7.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.
“Expiration Date” has the meaning set forth in Section 1.4(g)(3).
“Global Security” or “Global Securities” means a Security or Securities, as the case may be, evidencing all or part of a series of Securities, issued to the Depositary for such series or its nominee, and registered in the name of such Depositary or nominee.
“Holder” or “Holder of Securities” means a Person in whose name a Security is registered in the Security Register.
“Initial Securities” has the meaning set forth in the recitals to this Indenture.
“Indebtedness” of any Person means the principal of (and premium, if any), and interest due on indebtedness of such Person, whether outstanding on the date of this Indenture or thereafter created, incurred or assumed, which is (a) indebtedness for money borrowed and (b) any amendments, renewals, extensions, modifications and refundings of any such indebtedness. For the purposes of this definition, “indebtedness for money borrowed” means (i) any obligation of, or any obligation guaranteed by, such Person for the repayment of borrowed money, whether or not evidenced by bonds, debentures, notes or other written instruments, (ii) any obligation of, or any such obligation guaranteed by, such Person evidenced by bonds, debentures, notes or similar written instruments, including obligations assumed or incurred in connection with the acquisition of property, assets or businesses (provided, however, that the deferred purchase price of any other business or property or assets shall not be considered Indebtedness if the purchase price thereof is payable in full within 90 days from the date on which such indebtedness was created) and (iii) any obligations of such Person as lessee under leases required to be capitalized on the balance sheet of the lessee under generally accepted accounting principles and leases of property or assets made as part of any sale and leaseback transaction to which such Person is a party.
3
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 2.1.
“Interest Payment Date,” means, when used with respect to the Initial Securities, June 13 and December 13 of each year, beginning December 13, 2022 and at Maturity.
“Lien” has the meaning set forth in Section 5.7(a).
“Maturity,” means the Stated Maturity or when used with respect to any Security the date on which the principal of such Security or an installment of principal becomes due and payable by declaration of acceleration, call for redemption or otherwise.
“Non-U.S. Person” means a Person who is not a U.S. person (as defined in Regulation S).
“Notice of Default” has the meaning set forth in Section 7.1.
“Obligations” has the meaning set forth in Section 12.1.
“Officer” means the Chief Executive Officer, Chief Financial Officer, each Co-President, Chief Accounting Officer, any Senior Vice President, any Managing Director, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company.
“Officer’s Certificate” means a certificate signed by any Officer of the Company and delivered to the Trustee. An Officer’s Certificate provided pursuant to Section 5.5 shall be signed by a principal executive, financial, legal or accounting Officer of the Company.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company (including an employee or officer of the Company or any of its Affiliates), and which opinion shall be reasonably acceptable to the Trustee.
“Outstanding,” when used with respect to Securities of any series, means, as of the date of determination, all Securities of that series theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation or that have previously been canceled;
4
(ii) Securities or portions thereof for whose payment or redemption money (or in the case of payment by defeasance under Section 11.3, money, U.S. Government Obligations or both) in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust, or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent), for the Holders of such Securities; provided that, if such Securities or portions of such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made and provided, further, in the case of payment by defeasance under Section 11.3, that all conditions precedent to the application of such Section shall have been satisfied; and
(iii) Securities which have been paid pursuant to Section 2.6(c) or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder, the Securities owned by the Company or any other obligor upon the Securities, or any Affiliate of the Company or of such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s independent right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Par Call Date” means, with respect to the Initial Securities, March 13, 2032 (the date that is 3 months prior to the final maturity date of the Initial Securities).
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“Permanent Regulation S Global Securities” has the meaning set forth in Section 2.2(d).
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Physical Securities” has the meaning set forth in Section 2.2(f).
“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as contemplated by Section 2.1 or, if not so specified, the Corporate Trust Office of the Trustee.
5
“Predecessor Security” or “Predecessor Securities” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 2.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Private Placement Legend” has the meaning set forth in Section 2.14.
“QIB” means a “qualified institutional buyer,” as that term is defined in Rule 144A.
“Redemption Date,” when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect to any redemption of Securities, means the price at which such Securities are to be redeemed pursuant to this Indenture.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 2.2.
“Regulation S” means Regulation S under the Securities Act, together with any successor provision thereto, and as such may be hereafter amended from time to time.
“Regulation S Global Securities” has the meaning set forth in Section 2.2(d).
“Regulation S Physical Securities” has the meaning set forth in Section 2.2(e).
“Regulation S Security Exchange Date” has the meaning set forth in Section 2.13(c).
“Resale Restriction Termination Date” means, with respect to any Security, the date that is one year (or such other period as may hereafter be provided under Rule 144 under the Securities Act or any successor provision thereto as permitting the resale by nonaffiliates of Restricted Securities (as defined in Rule 144(a)(3) under the Securities Act) without restriction) after the later of the original issue date in respect of such Security and the last date on which the Company or any Affiliate of the Company was the owner of such Security (or any Predecessor Security thereto).
“Responsible Officer,” when used with respect to the Trustee, means any officer in the Corporate Trust Office of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter relating to this Indenture is referred because of such person’s knowledge of and familiarity with the particular subject and who, in each case, shall have direct responsibility for the administration of this Indenture.
“Rule 144A” means Rule 144A under the Securities Act, together with any successor provision thereto, and as such may be hereafter amended from time to time.
“Rule 144A Global Securities” has the meaning set forth in Section 2.2(b).
6
“Rule 144A Physical Securities” has the meaning set forth in Section 2.2(e).
“Securities” or “Security” means any Securities and/or Security of any series authenticated and delivered under this Indenture, including the Initial Securities, any Additional Securities that may be issued under a supplemental indenture and Securities to be issued or authenticated upon transfer, replacement or exchange of Securities.
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 2.5(a).
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Company pursuant to Section 2.7(b)(1).
“Stated Maturity,” when used with respect to the Initial Securities, June 13, 2032.
“Subsidiary” means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall at the time be owned, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of whose outstanding partnership or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of which such Person or any of its Subsidiaries is a general partner.
“Temporary Regulation S Global Securities” has the meaning set forth in Section 2.2(c).
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs:
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. Government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. Government securities–Treasury constant maturities– Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the applicable Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the applicable Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
7
If on the third Business Day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed, subject to Section 10.5 and, to the extent required by any amendment thereto, the Trust Indenture Act of 1939, as amended from time to time.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have assumed such role pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder and, if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“U.S. Government Obligation” means securities that are (x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America that in either case are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt.
8
“Voting Stock” means, with respect to any Person as of any date, shares, interests, participations or other equivalents in the equity interest (however designated) in such Person then outstanding having ordinary voting power for the election of the directors (or the equivalent) of such Person, other than shares, interests, participations or other equivalents having such power only by reason of the occurrence of a contingency.
Section 1.2. Compliance Certificates and Opinions.
(a) Upon any written application or request by the Company to the Trustee (including in its capacity as Paying Agent (other than with respect to routine operations of the Paying Agent)) to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with (other than in the case of any supplemental indenture to be executed or any Security to be issued on the date hereof) and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than certificates provided pursuant to Section 5.5) shall include:
(1) a statement that the Person signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, such Person has made such examination or investigation as such Person deemed reasonably necessary to enable such individual to express an opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such Person (based on the examination or investigation described in clause (3) above), such condition or covenant has been complied with.
Section 1.3. Form of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or more documents.
9
(b) Any certificate or opinion of any officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, the Company’s counsel unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion or any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company to the effect that the information with respect to such factual matters is in the possession of the Company unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.4. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent or proxy duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent or proxy shall be sufficient for any purpose of this Indenture and (subject to Section 8.1) conclusive in favor of the Trustee and the Company if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a Person acting in a capacity other than such Person’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner the Trustee deems sufficient.
(c) The ownership of Securities shall be proven by the Security Register or by a certificate of the Security Registrar.
10
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company whether or not notation of such action is made upon such Security or such other Security.
(e) The Depositary selected pursuant to subsection (b)(15) of Section 2.1, as a Holder, may appoint agents and/or otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take hereunder.
(f) The Trustee may make reasonable rules for action by or at a meeting of Holders, including with respect to proxy voting. The Security Registrar and Paying Agent may make reasonable rules and set reasonable requirements for its respective functions and compensation.
(g) With respect to record dates:
(1) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date (or their duly designated proxies), and no other Holders, shall be entitled to take the relevant action, whether or not such Persons remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date (as defined below in subsection (3)) by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities in the manner set forth in this Indenture.
11
(2) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Securities entitled to join in the giving or making of (A) any Notice of Default, (B) any declaration of acceleration referred to in Section 7.2, (C) any request to institute proceedings referred to in Section 7.6(2) or (A) any direction referred to in Section 7.11, in each case with respect to Securities. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities in the manner set forth in this Indenture.
(3) With respect to any record date set pursuant to this Section 1.4, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the Company or the Trustee, whichever such party is not setting a record date pursuant to this Section 1.4, in writing, and to each Holder of Securities in the manner set forth in this Indenture, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.4, the party hereto that set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
(4) Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
(5) Without limiting the generality of the foregoing, a Holder, including the Depositary, that is the Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and the Depositary, as the Holder of a Global Security, may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such depositary’s standing instructions and customary practices.
(6) The Company may fix a record date for the purpose of determining the persons who are beneficial owners of interests in any Global Security held by the Depositary entitled under the procedures of such depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such persons, shall be entitled to make, give or take such request, demand, authorization direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
12
Section 1.5. Notices, Etc., to Trustee or the Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (including by facsimile and electronic mail actually received) to or with the Trustee at its Corporate Trust Office;
(b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it, to the attention of One Moody Plaza, Galveston, TX 77550, Attention: Brody J. Merrill, with a copy to: Skadden, Arps, Slate, Meagher & Flom LLP, One Manhattan West, New York, NY 10001, Attention: Dwight Yoo, or at any other address previously furnished in writing to the Trustee by the Company; or
(c) the Company or the Trustee, by notice to the others, may designate additional or different addresses for subsequent notices or communications.
(d) The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent in pdf format by unsecured e-mail, pdf, facsimile transmission or other similar unsecured electronic methods, provided, however, that the Trustee shall have received or have on file an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction, and the Company agrees to assume all risks arising out of the use of such electronic methods by the Company to submit instructions and directions to the Trustee, including the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Section 1.6. Notice to Holders; Waiver.
(a) Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or by overnight courier guaranteeing next day delivery, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
13
(b) Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its designee) pursuant to the customary procedures of such Depositary (including delivery by electronic mail).
Section 1.7. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.8. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All agreements of the Trustee in this Indenture shall bind its successors.
Section 1.9. Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.10. Benefits of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent, Trustee, Security Registrar and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing Law. This Indenture and the Securities shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
Section 1.12. Submission to Jurisdiction. The Company irrevocably consents and agrees, for the benefit of the Holders from time to time of the Securities and the Trustee, that any legal action, suit or proceeding against it with respect to obligations, liabilities or any other matter arising out of or in connection with this Indenture or the Securities may be brought in the courts of the State of New York or the courts of the United States located in the Borough of Manhattan, New York City, New York and, until amounts due and to become due in respect of the Securities have been paid, hereby irrevocably consents and submits to the nonexclusive jurisdiction of each such court in personam, generally and unconditionally with respect to any action, suit or proceeding for itself in respect of its properties, assets and revenues.
Section 1.13. Legal Holidays. In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on the amount then payable for the intervening period.
14
Section 1.14. No Personal Liability of Directors, Officers, Employees, Incorporators, Authorized Persons and Stockholders. No director, officer, employee, incorporator, authorized person, member or stockholder of the Company or any Subsidiary of the Company shall have any liability for any obligation of the Company or any such Subsidiary under this Indenture, the Securities, or for any claim based on, in respect of, or by reason of, any such obligation or its creation. Each Holder, by accepting the Securities, waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Securities.
Section 1.15. Annexes, Exhibits and Schedules. All annexes, exhibits and schedules attached hereto are by this reference made a part hereof with the same effect as if herein set forth in full.
Section 1.16. Waiver of Jury Trial. Each of the Company, the Holders of Securities, the Security Registrar, the Paying Agent and the Trustee hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Securities or the transactions contemplated hereby.
Section 1.17. Electronic Communications; Electronic Signatures.
(a) The Company and the Trustee hereby agree to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods; provided, however, that (a) the party providing such electronic instructions or directions, subsequent to the transmission thereof, shall provide the originally executed instructions or directions to the Trustee in a timely manner and (b) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions or directions notwithstanding such instructions or directions conflict or are inconsistent with a subsequent written instruction or direction or if the subsequent written instruction or direction is never received. The party providing instructions or directions by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, as aforesaid, agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
(b) Unless otherwise provided herein, the words “execute”, “execution”, “signed”, and “signature” and words of similar import used in or related to any document to be signed in connection with this Indenture or any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that, notwithstanding anything herein to the contrary, the Trustee (in any capacity hereunder) is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Trustee pursuant to procedures approved by the Trustee.
15
ARTICLE II
THE SECURITIES
Section 2.1. Issuable in Series; Additional Securities.
(a) The Company may, from time to time, without the consent of the Holders of the Securities, issue Additional Securities under the Indenture as part of one or more separate series of Securities. The Company may also at any time issue Additional Securities under the Indenture which will be part of the same series as a specified series of the Initial Securities offered hereby and which will have the same interest rate and other terms (except, generally, for the issuance date, issuance price and, in some cases, the first interest payment date) as set forth in this Indenture with respect to such series of Initial Securities; provided, however, that the Company will use a separate CUSIP for any such Additional Securities that (a) are not part of the same “issue” as the Initial Securities within the meaning of U.S. Treasury Regulations sections 1.1275-1(f) and 1.1275-2(k), and (b) have, for purposes of U.S. federal income taxation, more than a de minimis amount of original issue discount as of the date of the issuance of such Additional Securities. Any Additional Securities may be issued with the benefit of an indenture supplemental to this Indenture.
(b) The Securities of each series shall not be superior in right of payment to, and shall rank equally in right of payment with, any other direct, unsecured and unsubordinated debentures, notes or other evidences of indebtedness of the Company.
Section 2.2. Forms and Dating; Terms.
(a) Provisions relating to the Initial Securities and any Additional Securities issued under this Indenture, and the Trustee’s or the Authenticating Agent’s certificate of authentication relating thereto, shall be in substantially the forms set forth, or referenced, in this Article II and Annex A attached hereto. Annex A is hereby incorporated in and expressly made a part of this Indenture. The Securities may have such appropriate insertions, omissions, substitutions, notations, legends, endorsements, identifications and other variations as are required or permitted by law, stock exchange rule or depositary rule or usage, agreements to which the Company is subject, if any, or other customary usage, or as may consistently herewith be determined by the Officer of the Company executing such Securities, as evidenced by such execution (provided, always, that any such notation, legend, endorsement, identification or variation is in a form acceptable to the Company). Each Security shall be dated the date of its authentication. The terms of the Securities set forth in Annex A are part of the terms of this Indenture. Any portion of the text of any Security may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Security. The Securities of any such series shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof
16
(b) Securities offered and sold in reliance on Rule 144A shall be issued in the form of one or more permanent Global Securities substantially in the form attached hereto as Annex A, except as otherwise permitted herein. Such Global Securities shall be referred to collectively herein as the “Rule 144A Global Securities,” and shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, as custodian for the Depositary and registered in the name of Cede & Co., the Depositary’s nominee, for credit to an account of an Agent Member, and shall be duly executed by the Company and authenticated by the Trustee or the Authenticating Agent as hereinafter provided. The aggregate principal amount of a Rule 144A Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
(c) Securities offered and sold in offshore transactions in reliance on Regulation S under the Securities Act shall, unless the Company otherwise notifies the Trustee in writing, be issued in the form of one or more temporary Global Securities substantially in the form attached hereto as Annex A except as otherwise permitted herein. Such Global Securities shall be referred to herein as the “Temporary Regulation S Global Securities,” and shall be deposited on behalf of the purchasers of the Securities represented thereby with the Trustee, as custodian for the Depositary or its nominee for the accounts of designated Agent Members holding on behalf of Euroclear or Clearstream and shall be duly executed by the Company and authenticated by the Trustee or the Authenticating Agent as hereinafter provided.
(d) Following the expiration of the distribution compliance period set forth in Regulation S with respect to any Temporary Regulation S Global Security, beneficial interests in such Temporary Regulation S Global Security shall be exchanged as provided in Sections 2.12 and 2.13 for beneficial interests in one or more permanent Global Securities substantially in the form attached hereto as Annex A, except as otherwise permitted herein. Such Global Securities shall be referred to herein as the “Permanent Regulation S Global Securities” and, together with the Temporary Regulation S Global Securities, as the “Regulation S Global Securities.” The Permanent Regulation S Global Securities shall be deposited on behalf of the holders of the Securities represented thereby with the Trustee, as custodian for the Depositary or its nominee for credit to the account of an Agent Member and shall be duly executed by the Company and authenticated by the Trustee or the Authenticating Agent as hereinafter provided. Simultaneously with the authentication of a Permanent Regulation S Global Security, the Trustee shall cancel the related Temporary Regulation S Global Security. The aggregate principal amount of a Regulation S Global Security may from time to time be increased or decreased by adjustments made in the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
(e) Subject to the limitations on the issuance of certificated Securities set forth in Sections 2.12 and 2.13, Securities issued pursuant to Section 2.4 in exchange for or upon transfer of beneficial interests (x) in a Rule 144A Global Security shall be in the form of permanent certificated Securities substantially in the form attached hereto as Annex A (as such form may be modified in accordance with Section 2.1) (the “Rule 144A Physical Securities”) or (y) in a Regulation S Global Security (if any), on or after the Regulation S Security Exchange Date with respect to such Regulation S Global Security, shall be in the form of permanent certificated Securities substantially in the form attached hereto as Annex A (as such form may be modified in accordance with Section 2.1) (the “Regulation S Physical Securities”), respectively, as hereinafter provided.
17
(f) The Rule 144A Physical Securities and Regulation S Physical Securities shall be construed to include any certificated Securities issued in respect thereof pursuant to Section 2.4, 2.5, 2.6 or 3.7, and the Rule 144A Global Securities and Regulation S Global Securities shall be construed to include any Global Securities issued in respect thereof pursuant to Section 2.4, 2.5, 2.6 or 3.7. The Rule 144A Physical Securities and the Regulation S Physical Securities, together with any other certificated Securities issued and authenticated pursuant to this Indenture, are sometimes collectively herein referred to as the “Physical Securities.” The Rule 144A Global Securities and the Regulation S Global Securities, together with any other Global Securities that are issued and authenticated pursuant to this Indenture, are sometimes collectively referred to as the “Global Securities.”
Section 2.3. Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company by any Officer of the Company. The signature of any Officer of the Company on the Securities may be manual or facsimile.
(b) Securities bearing the manual or facsimile signatures of any individual who was at any time an Officer of the Company shall bind the Company, notwithstanding that any such individual has ceased to hold such office prior to the authentication and delivery of such Securities or did not hold such office at the date of such Securities.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed on behalf of the Company pursuant to clause (a) above to the Trustee or the Authenticating Agent for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee or the Authenticating Agent, as applicable, in accordance with such Company Order shall authenticate and deliver such Securities.
(d) The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Wilmington Trust, National Association, as Trustee | ||
| By: _____________, its Authorized Signatory | ||
| Date: | ||
18
(e) In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive and (subject to Section 8.1) shall be fully protected in relying upon, an Opinion of Counsel and Officer’s Certificate to the effect that:
(1) such Securities, when authenticated and delivered by the Trustee or the Authenticating Agent and issued by the Company in the manner, and subject to any conditions, specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles.
(f) Notwithstanding that such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture would adversely affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(g) Each Security shall be dated the date of its authentication.
(h) No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee or the Authenticating Agent by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 2.9 together with a Company Order (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) to the effect that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 2.4. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the Company may execute, and upon receipt of a Company Order from the Company, the Trustee or the Authenticating Agent shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, with such appropriate insertions, omissions, substitutions and other variations as the Officer executing such Securities may determine, as evidenced by his or her execution of such Securities.
19
(b) If temporary Securities of any series are issued, the Company shall cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series and of like tenor, of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 2.5. Registration; Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Company may have one or more co-registrars. The Trustee is hereby appointed “Security Registrar” and “Paying Agent” for the purpose of registering Securities and transfers of Securities and paying the principal of (and premium, if any) and interest on any Securities on behalf of the Company, in each case as herein provided, and the Company hereby initially designates the Corporate Trust Office of the Trustee as the office or agency of the Company for such purposes where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company may have one or more additional paying agents, and the term “Paying Agent” shall include any additional Paying Agent. The Company may change the Security Registrar or Paying Agent without prior notice to the Holders of Securities. The Company may enter into an appropriate agency agreement with any Security Registrar or Paying Agent not a party to this Indenture. Any such agency agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee in writing of the name and address of any such agent. If the Company fails to appoint or maintain a Security Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to this Indenture. The Company may act as Security Registrar or Paying Agent with respect to any Securities issued hereunder.
(b) Upon surrender for registration of transfer of any Security of any series at an office or agency of the Company in a Place of Payment designated by the Company pursuant to Section 5.2 for that series, the Company shall execute, and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount and tenor.
(c) At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
20
(d) All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(e) Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer, in form satisfactory to the Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
(f) No service charge shall be made for any registration of transfer or for exchange of Securities, but the Company, the Trustee or the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 2.4, 2.5(h), 3.7 or 10.6 not involving any transfer.
(g) The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 Business Days before the day of the transmittal of a notice of redemption (or purchase) of Securities of that series selected for redemption (or purchase) under Section 3.3 and ending at the close of business on the day of such transmittal, or (ii) to register the transfer of or exchange any Security so selected for redemption (or purchase) in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h) Notwithstanding the foregoing, any Global Security shall be exchangeable pursuant to this Section 2.5 for Securities registered in the names of Persons other than the Depositary for such Security or its nominee only if (i) the Depositary notifies the Company at any time that (A) it is unwilling or unable to continue as Depositary for the Global Securities or (B) the Depositary ceases to be registered as a “Clearing Agency” under the Exchange Act, and in either case a successor depositary is not appointed within 90 days of receiving such notice; or (ii) the Company, at its option, notifies the Trustee and Paying Agent that it elects to cause the issuance of Physical Securities. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms.
(i) Notwithstanding any other provision in this Indenture, but subject to exchanges under clause (h) above, a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary.
(j) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among the Depositary or other beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. Neither the Trustee nor any of its agents shall have responsibility for any actions taken or not taken by a Depositary.
21
(k) The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Security, a member of, or a participant in, the applicable Depositary or other Person with respect to the accuracy of the records of a Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Securities (or other security or property) under or with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the applicable Depositary subject to the applicable rules and procedures of such Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the applicable Depositary with respect to its members, participants and any beneficial owners.
Section 2.6. Mutilated, Destroyed, Lost and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee, the Company shall execute and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by each of them to save each of them and any agent of any of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount, and bearing a number not contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, repay such Security.
(d) Upon the issuance of any new Security under this Section, the Company or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and its counsel) connected therewith.
22
(e) Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
(f) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.7. Payment of Interest; Interest Rights Preserved.
(a) Interest on each Interest Payment Date shall be payable to the Person in whose name the Securities are registered at the close of business on the regular record date for such Interest Payment Date, which shall be the June 1 or December 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, a “Regular Record Date”); provided, however, that interest due on the Maturity Date or any Redemption Date (in each case, whether or not an Interest Payment Date) will be paid to the Person to whom principal of such Securities is payable (subject to the rights of Holders on the relevant Regular Record Date to receive interest due on any Interest Payment Date preceding such Maturity Date or Redemption Date).
(b) The Initial Securities will bear interest at a rate of 6.144% per year. Interest on the Initial Securities will accrue from and including June 13, 2022 (or the most recent Interest Payment Date to which interest on the Initial Securities has been paid or made available for payment) and will be payable in arrears on each Interest Payment Date, and at the Maturity Date. Each interest payment due on an Interest Payment Date or the Maturity Date will include interest accrued from and including the most recent Interest Payment Date, as applicable, to which interest on the Securities has been paid or made available for payment (or, if no interest has been paid, June 13, 2022) to but excluding the next Interest Payment Date or any Redemption Date, as the case may be. Interest on the Securities will be computed on the basis of a 360-day year composed of twelve 30-day months. If any Interest Payment Date or Maturity Date falls on a date that is not a Business Day, such payment of interest (or principal in the case of Maturity for the Securities) will be postponed until the next succeeding Business Day, but no interest or other amount will be paid as a result of any such postponement, and such payment will have the same force and effect as if made on the scheduled Interest Payment Date.
(c) Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (“Defaulted Interest”) shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date entitled to such interest by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election, as provided in clause (1) or (2) below:
23
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee or Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements reasonably satisfactory to the Trustee or Paying Agent for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause. Thereupon the Company shall fix a special record date (the “Special Record Date”) for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Company shall promptly notify the Trustee of such Special Record Date and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be transmitted to each Holder of Securities of such series at such address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so transmitted, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may elect to make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange.
(d) Subject to the foregoing provisions of this Section, each Security delivered under this Indenture, upon registration of transfer of or in exchange for or in lieu of any other Security, shall carry the rights to interest accrued and unpaid, and interest to accrue, that were carried by such other Security.
Section 2.8. Persons Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee, including a Paying Agent, may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 2.7) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee, including a Paying Agent, shall be affected by notice to the contrary.
Section 2.9. Cancellation. All Securities surrendered for payment, redemption, registration of transfer, exchange, conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already cancelled, shall be promptly cancelled by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities, along with a Company Order pursuant to Section 2.3(h), previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as directed by a Company Order from the Company in accordance with the Trustee’s customary procedures (and subject to the record retention requirements of the Exchange Act).
24
Section 2.10. Computation of Interest. Interest on the Securities of each series shall be computed on the basis of a 360-day year composed of twelve 30-day months.
Section 2.11. CUSIP Numbers, ISINs, Etc. The Company in issuing the Securities may use “CUSIP,” “ISIN” and “Common Code” numbers (if then generally in use), and, if so, the Trustee may use such “CUSIP,” “ISIN” and “Common Code” numbers in notices of redemption or exchange as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness or accuracy of such numbers either as printed on the Securities or as contained in any notice of a redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption or exchange shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing of any change in any “CUSIP,” “ISIN” or “Common Code” number.
Section 2.12. Book-Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in the name of the Depositary for such Global Security or the nominee of such Depositary, in each case for credit to the account of an Agent Member, and (ii) be delivered to the Trustee as custodian for such Depositary. None of the Company, any agent of the Company or the Trustee shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(b) Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or its custodian, or under such Global Securities. The Depositary may be treated by the Company, any other obligor upon the Securities, the Trustee and any agent of any of them as the absolute owner of the Global Securities for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, any other obligor upon the Securities, the Trustee or any agent of any of them from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security. The Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Securities.
25
(c) Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but, subject to the immediately succeeding sentence, not in part, to the Depositary, its successors or their respective nominees. Interests of beneficial owners in a Global Security may not be transferred or exchanged for Physical Securities unless (i) the Company has consented thereto in writing, or such transfer or exchange is made pursuant to the next sentence, and (ii) such transfer or exchange is in accordance with the applicable rules and procedures of the Depositary and the provisions of Section 2.5 and Section 2.13. Subject to the limitation on issuance of Physical Securities set forth in Section 2.13(c), Physical Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in the relevant Global Security if (i) the Depositary notifies the Company at any time that (A) it is unwilling or unable to continue as Depositary for the Global Securities or (B) the Depositary ceases to be registered as a “Clearing Agency” under the Exchange Act, and in either case a successor depositary is not appointed within 90 days of receiving such notice; or (ii) the Company, at its option, notifies the Trustee and Paying Agent that it elects to cause the issuance of Physical Securities.
(d) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Security to beneficial owners for Physical Securities pursuant to Section 2.12(c), the Security Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to the beneficial interest in the Global Security being transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more Physical Securities of like tenor and principal amount of authorized denominations.
(e) In connection with a transfer of an entire Global Security to beneficial owners for Physical Securities pursuant to Section 2.12(c), the applicable Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary, in exchange for its beneficial interest in the applicable Global Security, an equal aggregate principal amount of Rule 144A Physical Securities (in the case of any Rule 144A Global Security) or Regulation S Physical Securities (in the case of any Regulation S Global Security), as the case may be, of authorized denominations.
(f) The transfer and exchange of a Global Security or beneficial interests therein shall be effected through the Depositary, in accordance with this Indenture (including applicable restrictions on transfer set forth in Section 2.13) and the procedures therefor of the Depositary. Any beneficial interest in one of the Global Securities that is transferred to a Person who takes delivery in the form of an interest in a different Global Security will, upon transfer, cease to be an interest in such Global Security and become an interest in the other Global Security and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Security for as long as it remains such an interest. A transferor of a beneficial interest in a Global Security shall deliver to the Security Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in the relevant Global Security. Subject to Section 2.13, the Security Registrar shall, in accordance with such instructions, instruct the Depositary to credit to the account of the Person specified in such instructions a beneficial interest in such Global Security and to debit the account of the Person making the transfer of the beneficial interest in the Global Security being transferred.
(g) Any Physical Security delivered in exchange for an interest in a Global Security pursuant to Section 2.12(c) shall, unless such exchange is made on or after the Resale Restriction Termination Date applicable to such Security and except as otherwise provided in Section 2.13 and Section 2.14, bear the Private Placement Legend.
26
(h) Notwithstanding the foregoing, through the Resale Restriction Termination Date, a beneficial interest in a Regulation S Global Security may be held only through designated Agent Members holding on behalf of Euroclear or Clearstream unless delivery is made in accordance with the applicable provisions of Section 2.13.
Section 2.13. Special Transfer Provisions.
(a) Transfers to Non-U.S. Persons. The following provisions shall apply with respect to the registration of any proposed transfer of a Security that is a restricted security to any Non-U.S. Person: The Security Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture (including Section 2.5) and:
(1) if (x) such transfer is after the relevant Resale Restriction Termination Date with respect to such Security or (y) the proposed transferor has delivered to the Security Registrar and the Company and the Trustee a Regulation S Certificate and, unless otherwise agreed by the Company, an Opinion of Counsel, certifications and other information reasonably satisfactory to the Company; and
(2) if the proposed transferor is or is acting through an Agent Member holding a beneficial interest in a Global Security, upon receipt by the Security Registrar and the Company and the Trustee of (x) the certificate, opinion, certifications and other information, if any, required by clause (1) above and (y) written instructions given in accordance with the procedures of the Security Registrar and of the Depositary,
whereupon (i) the Security Registrar shall reflect on its books and records the date and (if the transfer does not involve a transfer of any Outstanding Physical Security) a decrease in the principal amount of the relevant Global Security in an amount equal to the principal amount of the beneficial interest in the relevant Global Security to be transferred, and (ii) either (A) if the proposed transferee is or is acting through an Agent Member holding a beneficial interest in a relevant Regulation S Global Security, the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of such Regulation S Global Security in an amount equal to the principal amount of the beneficial interest being so transferred or (B) otherwise the Company shall execute and (upon receipt of a Company Order) the Trustee shall authenticate and deliver one or more Physical Securities of like tenor and amount.
27
(b) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a Security that is a restricted security to a QIB (excluding transfers to Non-U.S. Persons): The Security Registrar shall register such transfer if it complies with all other applicable requirements of this Indenture and:
(1) if such transfer is being made by a proposed transferor who has checked the box provided for on the form of such Security stating, or has otherwise certified to the Security Registrar and the Company and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee who has signed the certification provided for on the form of such Security stating, or has otherwise certified to the Security Registrar and the Company and the Trustee in writing, that it is purchasing such Security for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a QIB within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as it has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A; and
(2) if the proposed transferee is an Agent Member, and the Security to be transferred consists of a Physical Security that after transfer is to be evidenced by an interest in a Global Security or consists of a beneficial interest in a Global Security that after the transfer is to be evidenced by an interest in a different Global Security, upon receipt by the Security Registrar of written instructions given in accordance with the Depositary’s and the Security Registrar’s procedures, whereupon the Security Registrar shall reflect on its books and records the date and an increase in the principal amount of the transferee Global Security in an amount equal to the principal amount of the Physical Security or such beneficial interest in such transferor Global Security to be transferred, and the Trustee shall cancel the Physical Security so transferred or reflect on its books and records the date and a decrease in the principal amount of such transferor Global Security, as the case may be.
(c) Limitation on Issuance of Physical Securities. No Physical Security shall be exchanged for a beneficial interest in any Global Security, except in accordance with Section 2.12 and this Section 2.13. A beneficial owner of an interest in a Temporary Regulation S Global Security (and, in the case of any additional securities for which no Temporary Regulation S Global Security is issued, any Regulation S Global Security) shall not be permitted to exchange such interest for a Physical Security or (in the case of such interest in a Temporary Regulation S Global Security) an interest in a Permanent Regulation S Global Security until a date, which must be after the end of the 40-day distribution compliance period as defined in Regulation S, on which the Company receives a certificate of beneficial ownership from such beneficial owner. Such date, as it relates to a Regulation S Global Security, is herein referred to as the “Regulation S Security Exchange Date.”
(d) Private Placement Legend. (i) Upon the transfer, exchange or replacement of Securities not bearing the Private Placement Legend, the Security Registrar shall deliver Securities that do not bear the Private Placement Legend; or (ii) upon the transfer, exchange or replacement of Securities bearing the Private Placement Legend, the Security Registrar shall deliver only Securities that bear the Private Placement Legend, in each case unless (i) the requested transfer is after the relevant Resale Restriction Termination Date with respect to such Securities, (ii) upon written request of the Company after there is delivered to the Security Registrar an Opinion of Counsel (which opinion and counsel are reasonably satisfactory to the Company) to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act, (iii) with respect to a Regulation S Global Security (on or after the Regulation S Security Exchange Date with respect to such Regulation S Global Security) or Regulation S Physical Security, in each case with the agreement of the Company, or (iv) such Securities are sold or exchanged pursuant to an effective registration statement under the Securities Act.
28
(e) Other Transfers.
(1) The Security Registrar shall effect and register, upon receipt of a written request from the Company to do so, a transfer not otherwise permitted by this Section, such registration to be done in accordance with the otherwise applicable provisions of this Section, upon the furnishing by the proposed transferor or transferee of a written Opinion of Counsel (which opinion and counsel are reasonably satisfactory to the Company) to the effect that, and such other certifications or information as the Company may require to confirm that, the proposed transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
(2) A Security that is a restricted security may not be transferred other than as provided in this Section. A beneficial interest in a Global Security that is a restricted security may not be exchanged for a beneficial interest in another Global Security other than through a transfer in compliance with this Section.
(f) General.
(1) By its acceptance of any Security bearing the Private Placement Legend, each Holder of such a Security acknowledges the restrictions on transfer of such Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Security only as provided in this Indenture.
(2) The Security Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 2.12 or this Section 2.13 (including all Securities received for transfer pursuant to this Section 2.13). The Company shall have the right to require the Security Registrar to deliver to the Company, at the Company’s expense, copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Security Registrar.
(3) In connection with any transfer of any Security, the Trustee, the Security Registrar and the Company shall be entitled to receive, shall be under no duty to inquire into, may conclusively presume the correctness of, and shall be fully protected in relying upon the certificates, opinions and other information referred to herein (or in the forms provided herein, attached hereto or to the Securities, or otherwise) received from any Holder and any transferee of any Security regarding the validity, legality and due authorization of any such transfer, the eligibility of the transferee to receive such Security and any other facts and circumstances related to such transfer.
Section 2.14. Restrictive and Global Security Legends. Each Global Security and Physical Security (and all Securities issued in exchange therefor or substitution thereof) shall bear the following legend set forth below (the “Private Placement Legend”) on the face thereof until the Private Placement Legend is removed or not required in accordance with Section 2.13(d):
“THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH BELOW. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER EXEMPTION UNDER THE SECURITIES ACT.
29
BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS SECURITY (1) REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, AND (2) AGREES THAT IT WILL NOT OFFER, RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) (I) TO THE COMPANY OR ANY PARENT OR SUBSIDIARY THEREOF, (II) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT INSIDE THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER PURCHASING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A UNDER THE SECURITIES ACT, (III) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT (IF AVAILABLE), (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (V) PURSUANT TO ANY OTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. BY ITS ACCEPTANCE HEREOF, THE HOLDER OF THIS SECURITY FURTHER AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS SECURITY PURSUANT TO SUBCLAUSES (IV) OR (V) OF CLAUSE (A) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS “OFFSHORE TRANSACTION,” “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”
30
Each Global Security shall also bear the following legend on the face thereof:
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN SECTIONS 2.12 AND 2.13 OF THE INDENTURE (AS DEFINED HEREIN).”
Each Temporary Regulation S Global Security shall also bear the following legend on the face thereof:
“BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON, NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON, AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.
EXCEPT AS SPECIFIED IN THE INDENTURE, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL SECURITY OR ANY OTHER SECURITY REPRESENTING AN INTEREST IN THE SECURITIES REPRESENTED HEREBY WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE “40 DAY DISTRIBUTION COMPLIANCE PERIOD” (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER THE SECURITIES ACT). DURING SUCH 40 DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL SECURITY MAY NOT BE SOLD, PLEDGED OR TRANSFERRED TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON.”
ARTICLE III
REDEMPTION OF SECURITIES
Section 3.1. Applicability of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and in accordance with this Article III.
31
Section 3.2. Election to Redeem; Notice to Trustee.
In case of any redemption at the election of the Company, the Company shall, at least five (5) Business Days prior to the date that the notice of redemption is required to be given or caused to be given to the Holders of such Securities pursuant to Section 3.4(a) (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed, by any means reasonably acceptable to the Trustee, including facsimile or electronic mail actually received. Any such notice may be cancelled at any time prior to notice of such redemption being delivered to any Holder and shall thereby be void and of no effect. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate of the Company evidencing compliance with such restriction.
Section 3.3. Selection by Trustee of Securities to Be Redeemed.
(a) If less than all the Securities of like tenor of any series are to be redeemed, the particular securities to be redeemed shall be selected by the Trustee from the Outstanding Securities of like tenor of such series not previously called for redemption, pro rata, by lot or any other such method as the Trustee shall deem fair and appropriate, and in the case of Global Securities, in accordance with the customary procedures of the applicable Depositary and which may provide for the selection for redemption of portions (in integral multiples of $1,000, although no Securities of the minimum authorized denomination for Securities of that series or less will be redeemed in part) of the principal amount of such Securities of a denomination larger than the minimum authorized denomination for such Securities.
(b) The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. On and after the Redemption Date, interest will cease to accrue on the Securities or portions thereof redeemed by the Company.
(c) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 3.4. Notice of Redemption.
(a) Notice of redemption shall be given by first-class mail, postage prepaid, or by facsimile or electronic mail in PDF format, transmitted not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder’s address appearing in the Security Register.
Such notice of redemption shall state:
(1) the expected Redemption Date;
(2) the Redemption Price (or the formula by which the Redemption Price will be determined);
(3) if less than all the Outstanding Securities of like tenor of any series are to be redeemed, the principal amount or amounts of the particular Securities to be redeemed;
32
(4) in case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security and cancellation thereof, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;
(5) that, on the Redemption Date, the Redemption Price will become due and payable upon each such Security (or portion thereof) to be redeemed and, if applicable, that interest thereon will cease to accrue on and after such date;
(6) the CUSIP number and/or similar numbers of such Securities, if any (or any other numbers used by a Depositary to identify such Securities); and
(7) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and
In addition, if such redemption is subject to satisfaction of one or more conditions precedent, as permitted by the supplemental indenture establishing such series of Securities, then such notice shall describe each such condition, and, if applicable, shall state that, in the Company’s discretion, the Redemption Date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Redemption Date, or by the Redemption Date as so delayed.
(b) Any such notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s written request, and upon five (5) Business Days’ prior notice (unless a shorter notice shall be satisfactory to the Trustee), by the Trustee in the name and at the expense of the Company. The notice delivered in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Holder receives such notice. In any case, failure to deliver such notice or any defect in the notice to the Holder or any Security shall not affect the validity or the proceeding for the redemption of any such Security.
Section 3.5. Deposit of Redemption Price. On or prior to 11:00 a.m. New York City time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, the Company shall segregate and hold in trust as provided in Section 5.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 3.6. Securities Payable on Redemption Date.
(a) Subject to the final sentence of Section 3.4(a), notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and, from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with such notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to (but excluding) the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 2.7.
33
(b) On and after any Redemption Date, if money sufficient to pay the Redemption Price of Securities called for redemption (including any accrued and unpaid interest payable thereon) shall have been made available in accordance with Section 3.5, the Securities (or the portions thereof) called for redemption shall cease to accrue interest and the only right of the Holders of such Securities (or portions thereof) will be to receive payment of the Redemption Price of such Securities (or portions thereof), including, subject to the rights of Holders on the relevant Regular Record Date to receive interest due on any Interest Payment Date preceding such Maturity or Redemption Date, any accrued and unpaid interest on such Securities to, but excluding, the Redemption Date. If any Security (or portion thereof) called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by the Security (or portion thereof).
Section 3.7. Securities Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing). The Company shall execute, and, upon receipt of a Company Order, the Trustee or the Authenticating Agent shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered (or if the Security is a Global Security, an adjustment shall be made to the schedule attached thereto).
Section 3.8. Optional Redemption.
(a) At any time and from time to time prior to the applicable Par Call Date, the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to, but excluding, the redemption date (assuming the Securities matured on the applicable Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points or 0.50% less (b) interest accrued to, but excluding, the date of redemption, and
(2) 100%
of the principal amount of the Securities to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding, the redemption date.
34
(b) On or after the applicable Par Call Date, the Company may redeem the Securities, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Securities being redeemed plus accrued and unpaid interest thereon to the redemption date.
(c) The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall have no duty to determine or verify the Company’s determination of the redemption price.
(d) Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 30 days but not more than 60 days before the redemption date to each holder of Securities to be redeemed
(e) In the case of a partial redemption, selection of the Securities for redemption will be made pro rata, by lot or by such other method as the Trustee in its sole discretion deems appropriate and fair; and in the case of global notes, in accordance with the customary procedures of the Depositary. No Security of a principal amount of $2,000 or less will be redeemed in part. If any Security is to be redeemed in part only, the notice of redemption that relates to the Security will state the portion of the principal amount of the Security to be redeemed. A new Security in a principal amount equal to the unredeemed portion of the Security will be issued in the name of the holder of the Security upon surrender for cancellation of the original Security.
(f) Unless the Issuer defaults in payment of the redemption price, on and after the redemption date, interest will cease to accrue on the Securities or portions thereof called for redemption.
ARTICLE IV
SINKING FUNDS
Section 4.1. Sinking Fund; Holder Repurchase Right. The Securities shall not be subject to any sinking fund or analogous provision or be redeemable at the option of the Holders.
ARTICLE V
COVENANTS
Section 5.1. Payment of Principal, Premium and Interest.
(a) The Company shall duly and punctually pay the principal of (and premium, if any) and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
(b) An installment of principal (and premium, if any) or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay such installment.
35
Section 5.2. Maintenance of Office or Agency.
(a) The Company shall maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. The Corporate Trust Office of the Trustee is hereby designated an office or agency as required pursuant to this Section 5.2(a). If at any time the Company shall fail to maintain any such required office or agency other than the Corporate Trust Office of the Trustee, or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided that no service of legal process may be made against the Company at any office of the Trustee.
(b) The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 5.3. Money for Securities Payments to Be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each Stated Maturity of the principal of (and premium, if any) or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee of its failure so to act.
(b) Whenever the Company is not acting as Paying Agent, it shall, on or prior to 11:00 a.m., New York City time on each due date of the principal of (and premium, if any) or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act; provided, however, that to the extent any such funds are received by the Paying Agent from the Company after 11:00 a.m., New York City time, on such due date, such funds will be distributed to such Persons within one Business Day of receipt thereof by the Paying Agent.
36
(c) The Company shall cause each Paying Agent for any series of Securities other than the Trustee or the Company to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 5.3, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that series;
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and
(4) (i) prior to the qualification of this Indenture under the Trust Indenture Act, acknowledge, accept and agree to comply in all respects with the provisions of this Indenture and (ii) following the qualification of this Indenture under the Trust Indenture Act, if ever, acknowledge, accept and agree to comply in all respects with the provisions of this Indenture and the Trust Indenture Act, in each case, relating to the duties, rights and liabilities of such Paying Agent.
(d) The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent. Upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Upon any Event of Default of the Company under clause (5) or (6) of Section 7.1, the Trustee shall automatically be the Paying Agent.
(e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company in trust, for the payment of the principal of (and premium, if any) or interest on any Security of any series, and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall be paid to the Company by the Trustee or (if then held by the Company) shall be discharged from such trust. Thereafter the Holder of such Security shall, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease.
Section 5.4. Corporate Existence. Subject to Article VI, the Company shall 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 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 a material respect to the Holders.
37
Section 5.5. Annual Statement by Officer as to Default. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year (which fiscal year as of the date of this Indenture ends on December 31) of the Company ending after the date hereof, an Officer’s Certificate stating that to the knowledge of the signer thereof (on behalf of the Company) the Company was or was not in default in the performance and observance of any of the terms, provisions and conditions of this Indenture applicable to the Company during such fiscal year and, if the Company was in default, specifying all such defaults and the nature and status thereof of which he or she may have knowledge. If any default or Event of Default under Section 7.1 has occurred and is continuing, within 30 Business Days after its becoming aware of such occurrence, the Company shall deliver to the Trustee an Officer’s Certificate specifying such event and what action the Company is taking or proposes to take with respect thereto. Following the qualification of this Indenture under the Trust Indenture Act, if ever, to the extent required by the Trust Indenture Act, the individual signing any certificate given by any Person pursuant to this Section 5.5 shall be the principal executive, financial or accounting officer of such Person, in compliance with Section 314(a)(4) of the Trust Indenture Act.
Section 5.6. Provision of Information; Reports by Company.
(a) The Company hereby agrees that, for so long as any Securities are Outstanding and the Company is not subject to the reporting requirements of the Exchange Act, the Company shall furnish to any Holder of Securities or to any prospective purchaser designated by such a Holder, upon the request of the Holder, the business and financial information concerning the Company called for under paragraph (d)(4) of Rule 144A. The Company will be deemed to have satisfied the requirements of this Section 5.6 if any parent guaranteeing the Securities furnishes or makes available information regarding the parent of the type otherwise so required with respect to the Company. Such information may be made available by posting to a website maintained or designated by the Company (which may be a secured, password-protected website). Written requests for such information should be directed to: One Moody Plaza, Galveston, TX 77550, Attention: Brody J. Merrill, Tel: (409) 766-6826.
(b) The Company shall deliver to the Trustee, within 15 days after the same is filed with the Commission, copies of the quarterly and annual reports and of the information, documents and other reports, if any, that the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, and, following the qualification of this Indenture pursuant to the Trust Indenture Act, if ever, the Company shall otherwise comply with the requirements of Section 314(a) of the Trust Indenture Act. Any such report, information or document that the Company files with the Commission through the Commission’s EDGAR database (or any successor thereto) shall be deemed delivered to the Trustee for purposes of this Section 5.6(b) at the time of such filing through the EDGAR database (or successor thereto), without notice to the Trustee or any other action on the part of the Company.
(c) Delivery of any information, documents and reports to the Trustee pursuant to clause (b) of this Section 5.6 is for informational purposes only and the Trustee’s receipt of such items shall not constitute actual nor 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 Trustee is entitled to rely exclusively on Officer’s Certificates of the Company). The Trustee shall not be obligated to monitor or confirm, on a continuing basis or otherwise, the Company’s or any other Person’s compliance with the covenants described above.
38
Section 5.7. Limitations on Liens.
(a) So long as any Securities are outstanding and except in a transaction otherwise governed or permitted by this Indenture, the Company shall not, and shall not cause or permit any Subsidiary to, create, assume, incur or guarantee any Indebtedness that is secured by a pledge, mortgage or other lien (collectively, a “Lien”) on any Voting Stock or profit participating equity interests of any direct or indirect wholly owned Subsidiary of the Company that is or is required to be licensed as an insurer or reinsurer (each, an “Insurance Subsidiary”) or any entity that succeeds (whether by merger, consolidation, sale of assets or otherwise) to all or substantially all of the business of any Insurance Subsidiary, without providing that the Securities (together with, in the Company’s sole discretion, any other Indebtedness of, or guarantee by, the Company ranking equally with the Securities and existing as of the date hereof or thereafter created) will be secured equally and ratably with or prior to all other Indebtedness secured by such pledge, mortgage or other Lien on the Voting Stock or profit participating equity interests of any Insurance Subsidiary or such entity that succeeds (whether by merger, consolidation, sale of assets or otherwise) to all or substantially all of the business of any Insurance Subsidiary. This covenant shall not limit the Company’s ability or the ability of its respective Subsidiaries to incur Indebtedness or other obligations secured by Liens on assets other than the Voting Stock or profit participating equity interests of any Insurance Subsidiary or any entity that succeeds (whether by merger, consolidation, sale of assets or otherwise) to all or substantially all of the business of any Insurance Subsidiary.
(b) Any Lien that is granted to secure the Securities under this Section 5.7 shall be automatically and unconditionally released and discharged at the same time as the release of the Lien (other than a release following enforcement of remedies in respect of such Lien or the obligations secured by such Lien) that gave rise to the obligation to secure the Securities hereunder.
ARTICLE VI
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 6.1. Company May Consolidate, Etc., Only on Certain Terms. So long as any Securities are outstanding, the Company shall not (x) merge or amalgamate with or into or consolidate with another entity or (y) convey, lease or otherwise transfer all or substantially all of its assets to any other entity other than to one of its direct or indirect wholly owned Subsidiaries, in each case unless (a)(i) the Company is the resulting, surviving or transferee entity, as applicable, or (ii) if the Company is not the resulting, surviving or transferee entity, the resulting, surviving or transferee Person is an entity organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and such Person expressly assumes by supplemental indenture all of the Company’s obligations under the Securities and this Indenture; (b) immediately after giving effect to such transaction or series of related transactions, no default or event of default has occurred and is continuing under this Indenture; and (c) the Company delivers to the Trustee an Officer’s Certificate and Opinion of Counsel, each to the effect that the consolidation, merger or transfer and such supplemental indenture comply with this Indenture. Upon any such consolidation, merger or transfer, the resulting, surviving or transferee Person (if not the Company) shall succeed to, and may exercise every right and power of, the Company under this Indenture. The Trustee shall be entitled to conclusively rely on the Officer’s Certificate and Opinion of Counsel delivered pursuant to this Section 6.1 with respect to the matters set forth in this Section 6.1.
39
Section 6.2. Exception. Section 6.1 shall not prohibit (i) the direct or indirect conveyance or transfer of all or any portion of the capital stock, assets or liabilities of any of the Company’s direct or indirect wholly owned Subsidiaries to the Company or any of its direct or indirect wholly owned Subsidiaries or (ii) the consolidation or merger of any of the Company’s direct or indirect wholly owned Subsidiaries with and into the Company.
Section 6.3. Successor Company Substituted. Upon any consolidation by the Company with or merger or amalgamation by the Company into any other Person or any conveyance, transfer or lease of all or substantially all of the properties and assets of the Company in accordance with Section 6.1, the successor formed by such consolidation or into which the Company is merged or amalgamated or the Person to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall not be released from the obligation to pay the principal of and interest on the Securities.
ARTICLE VII
REMEDIES
Section 7.1. Events of Default.
“Event of Default,” wherever used herein with respect to Securities of one or more series affected thereby, means any one of the following events that has occurred and is continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) failure to pay any interest upon any Security of that series when it becomes due and payable, and continuance of such default for 30 days;
(2) failure to pay the principal of (or premium, if any, on) any Security of that series when due and payable at its Maturity;
(3) failure (other than those relating to payment) of the Company to comply with any of the Company’s other agreements, obligations or covenants with respect to the Securities of that series, and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of the series affected thereby, a written notice specifying such default or breach and requiring it to be remedied and to the effect that such notice is a “Notice of Default” hereunder;
40
(4) failure by the Company to pay the principal on any Indebtedness (other than a default under this Indenture, any Indebtedness owed to a parent or Subsidiary of the Company or on any nonrecourse Indebtedness) within any applicable grace period after final maturity or the acceleration of any such Indebtedness by the holders thereof because of a default, if the total amount of such Indebtedness so unpaid or accelerated exceeds $75,000,000 or its foreign currency equivalent; provided that no default or Event of Default shall be deemed to occur with respect to any such Indebtedness that is paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 30 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount of the Outstanding Securities of the series affected thereby, a written notice specifying such default and requiring the Company to cause such acceleration to be rescinded or annulled and to the effect that such notice is a “Notice of Default” hereunder;
(5) 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 federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company 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 federal or state 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 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, rehabilitation, reorganization or other similar law or of any other case or proceeding to be adjudicated 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 federal or state bankruptcy, insolvency, rehabilitation, 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 federal or state 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 or of any substantial part of the property of the Company or the making by the Company of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action.
The Trustee shall not be deemed to have knowledge of an Event of Default hereunder (except for those described in paragraphs (1) and (2) above, and then only if the Trustee is also the Paying Agent) unless a Responsible Officer of the Trustee has received written notice thereof (including receipt of a Notice of Default on behalf of the Company) and such notice references the Securities and this Indenture.
41
Section 7.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause (5) or (6) of Section 7.1) occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of the series affected thereby may declare the principal amount of, and accrued and unpaid interest on, all of the Securities of the applicable series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. If an Event of Default specified in clause (5) or (6) of Section 7.1 occurs, the principal amount of, and accrued and unpaid interest on, all of the Outstanding Securities of each series shall be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Security of that series.
(b) At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) rescission would not conflict with any judgment or decree of a court of competent jurisdiction for payment of the money due;
(2) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any), on any Securities of that series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue principal (and premium, if any) and overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(3) all Events of Default with respect to Securities of such series, other than the non-payment of the principal (and premium, if any) and/or interest of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 7.12.
42
(c) No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 7.3. Trustee May File Proofs of Claim.
(a) In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal (and premium, if any) or interest) the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 8.7 of this Indenture) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same.
(b) Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 8.7.
(c) Nothing herein contained shall be deemed to authorize the Trustee to authorize, consent to, accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
(d) The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters it deems advisable.
Section 7.4. Trustee May Enforce Claims without Possession of Securities. All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
43
Section 7.5. Application of Money Collected. Any money or property collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money or property on account of principal (or premium, if any) or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee (acting in any capacity hereunder) under Section 8.7;
SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: To the Company as it may be entitled.
Section 7.6. Limitation on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of the series affected thereby;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of the series affected thereby shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered, and if requested, provided to the Trustee indemnity or security satisfactory to the Trustee in its sole discretion against any loss, liability or expense to be incurred in compliance with such written request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity or security has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request (as determined by the Trustee in its reasonable discretion) has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of the series affected thereby,
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
44
Section 7.7. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any) and (subject to Section 2.7) interest on such Security on the Stated Maturity expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 7.8. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 7.9. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 7.10. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 7.11. Control by Holders.
(a) The Holders of a majority in aggregate principal amount of the Outstanding Securities of a particular series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that the Trustee may refuse to follow any direction that is in conflict with any rule of law or with this Indenture, subjects the Trustee to a risk of personal liability in respect of which the Trustee has not received indemnification or security satisfactory to it, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders not joining in the giving of such direction (it being understood that the Trustee does not have an affirmative duty to determine whether any action is prejudicial to any Holder), and that the Trustee may take any other action it deems proper that is not inconsistent with any such direction.
45
(b) Following the qualification of this Indenture under the Trust Indenture Act, if ever, this Section shall be in lieu of Section 316(a)(1)(A) of the Trust Indenture Act, and such Section 316(a)(1)(A) of the Trust Indenture Act is hereby expressly excluded from this Indenture and the Securities, as permitted by the Trust Indenture Act.
Section 7.12. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except in each case a default:
(1) in the payment of the principal of any Security of that series when due and payable at its Maturity;
(2) in respect of the redemption of any Security when required in accordance with the terms of such Security; or
(3) in respect of a covenant or provision hereof which under Article X cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
(b) Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. In case of any such waiver, the Company, any other obligor upon the Securities, the Trustee and the Holders shall be restored to their former positions and rights hereunder and under the Securities. Following the qualification of this Indenture under the Trust Indenture Act, if ever, this paragraph of this Section shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Indenture and the Securities, as permitted by the Trust Indenture Act.
Section 7.13. Undertaking for Costs. Each party to this Indenture agrees, and each Holder of any Security by such Holder’s acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or the Securities, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (and premium, if any) and/or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
46
Section 7.14. Waiver of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VIII
THE TRUSTEE
Section 8.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default actually known to a Responsible Officer of the Trustee:
(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of gross negligence or willful misconduct on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not verify the contents thereof).
(b) In case an Event of Default has occurred and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1) this subsection shall not be construed to limit the effect of subsection (a) of this Section 8.1;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts or engaged in willful misconduct relating thereto;
47
(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith, in accordance with the direction of Holders of Securities, determined as provided in Section 7.11, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities; and
(4) no provision of this Indenture or the Securities shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if repayment of such funds or adequate security or indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VIII.
(e) The Trustee shall not be liable for interest on any money or assets received by it except as the Trustee may agree in writing with the Company.
(f) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if written and signed by an Officer of the Company.
Section 8.2. Notice of Defaults. Within 90 days after a Responsible Officer of the Trustee has received written notice at its Corporate Trust Office specifying the Securities and this Indenture of an occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall send to all Holders of Securities of such series, as their names and addresses appear in the Security Register, notice of such default hereunder so known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (and premium, if any) and/or interest on any Security of such series or in the payment of any sinking fund installment with respect to Securities of such series, the Trustee shall be protected in withholding such notice if the Trustee in good faith determines that the withholding of such notice is in the interest of the Holders of Securities of such series. For the purpose of this Section 8.2, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 8.3. Certain Rights of Trustee. Subject to the provisions of Section 8.1:
(a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other document believed by it to be genuine and to have been signed or presented by the proper party or parties, and the Trustee need not investigate any fact or matter stated in such document;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, or as otherwise expressly provided herein, and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution or as otherwise expressly provided herein;
48
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in good faith, require and rely upon an Officer’s Certificate and/or Opinion of Counsel from the appropriate party. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate and/or Opinion of Counsel from the appropriate party;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture (including, without limitation, instituting, conducting or defending any litigation), unless such Holders shall have offered, and if requested provided, to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other document, but if notwithstanding the foregoing the Trustee makes or is directed to make such further inquiry or investigation into such facts or matters, it shall be entitled to examine the books, records and premises of the Company, personally or by an agent or attorney at the sole cost of the Company and, subject to Section 8.1(c), shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has received written notice of any event which is in fact such a default or Event of Default (in physical form or electronically) by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture. For purposes of determining the Trustee’s responsibility and, if any, liability hereunder, whenever reference is made in this Indenture to a default or Event of Default, such reference shall be construed to refer only to such default or Event of Default for which the Trustee is deemed to have notice pursuant to this Section 8.3(h);
49
(i) the permissive rights of the Trustee enumerated herein shall not be construed as duties of the Trustee;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, in the event the Trustee reasonably believes that the last such certificate received from the Company or currently on file is no longer accurate;
(l) the Trustee shall not be required to give any note, bond or surety in respect of the execution of the trusts and powers under this Indenture;
(m) the Trustee shall have no obligation or duty to ensure compliance with the securities laws of any country or state except to request such certificates or other documents required to be obtained by the Trustee or any Security Registrar hereunder in connection with any exchange or transfer pursuant to the terms hereof; and
(n) the Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers conferred upon it by this Indenture.
(o)
Section 8.4. Not Responsible for Issuance of Securities; Indenture. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Securities, shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or any money paid to the Company pursuant to the terms of this Indenture and shall not be responsible for any statement of the Company in this Indenture or in any document issued in connection with the sale of the Securities or in the Securities other than the Trustee’s certificate of authentication.
Section 8.5. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 8.6. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
50
Section 8.7. Compensation and Reimbursement.
(a) The Company agrees:
(1) to pay to the Trustee from time to time such compensation for its acceptance of this Indenture and for its services hereunder as Trustee, Paying Agent, Security Registrar and in all other capacities in which it is serving hereunder as the Company and the Trustee shall from time to time agree in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee (acting in any capacity hereunder) upon its request for all reasonable expenses, disbursements and advances actually incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its own negligent action, its own negligent failure to act, or its own willful misconduct as determined by a final nonappealable order of a court of competent jurisdiction; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, claim, damage, liability or expense (including the reasonable compensation, expenses and disbursements of its agents and counsel) incurred in the absence of gross negligence or willful misconduct on its or their part as determined by a final nonappealable order of a court of competent jurisdiction, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the fees and reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of the Trustee’s powers or duties hereunder and including enforcing this Section 8.7.
As security for the performance of the obligations of the Company under this Section 8.7, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee, other than property and funds held in trust to pay the principal of and interest on any particular Securities. If the Trustee incurs expenses or renders services after the occurrence and during the continuance of an Event of Default under clauses (5) or (6) of Section 7.1, the expenses and the compensation for the services will be intended to constitute expenses of administration under Title 11 of the United States Bankruptcy Code or any applicable federal or state law for the relief of debtors. The provisions of this Section 8.7 shall survive the resignation or removal of the Trustee and/or the satisfaction, discharge and termination of this Indenture for any reason.
(b) The Trustee shall notify the Company promptly of any third-party claim for which it may seek indemnity of which it has received written notice. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder.
Section 8.8. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a conflicting interest, the Trustee shall eliminate such interest or resign, subject to the provisions of this Indenture. (i) Prior to the qualification of this Indenture under the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to any Securities or a trustee under any other indenture between the Company and the Trustee, and (ii) following the qualification of this Indenture under the Trust Indenture Act, to the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to any Securities or a trustee under any other indenture between the Company and the Trustee.
51
Section 8.9. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder, which shall be a corporation or other entity organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal, state or District of Columbia authority. If such entity publishes reports of condition at least annually, pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section 8.9, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 8.9, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VIII.
Section 8.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 8.11.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor Trustee required by Section 8.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time upon not less than thirty-one (31) days’ prior written notice with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 8.8 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months;
(2) the Trustee shall cease to be eligible under Section 8.9 and shall fail to resign after written request therefor by the Company or any such Holder;
(3) the Trustee shall have or have acquired a conflicting interest with respect to the Company or the Holders of any series of Security; or
52
(4) the Trustee shall become incapable of acting or shall be adjudged bankrupt or insolvent, or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company may remove the Trustee with respect to all Securities upon not less than thirty-one (31) days’ prior written notice, or (ii) subject to Section 7.13, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 8.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 8.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 8.11, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to all Holders of Securities of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 8.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. On the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
53
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
On request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in clause (a) and (b) of this Section 8.11, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
(e) Notwithstanding the replacement of the Trustee pursuant to Section 8.10, the Company’s obligations under Section 8.7 shall continue for the benefit of the retiring Trustee.
54
Section 8.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation or other entity succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation or other entity shall be otherwise qualified and eligible under this Article. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 8.13. Preferential Collection of Claims. Following any qualification of this Indenture under the Trust Indenture Act, if ever, the Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of the Trust Indenture Act; and a Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
Section 8.14. Appointment of Authenticating Agent.
(a) At any time when any of the Securities remain Outstanding, the Trustee may and, upon request of the Company, shall appoint an Authenticating Agent or Agents with respect to one or more series of Securities, which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 2.6; provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment. Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all times be a corporation or other entity organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually pursuant to law or to the requirements of such supervising or examining authority, then for the purposes of this Section 8.14, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 8.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 8.14.
(b) Any corporation or other entity into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation or other entity resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation or other entity succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent, provided that such corporation or other entity shall be otherwise eligible under this Section 8.14.
55
(c) An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company, and the Trustee shall terminate any such agency promptly upon request by the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may and, upon request of the Company, shall appoint a successor Authenticating Agent, provided that the Trustee’s appointment of such Authenticating Agent shall be subject to the Company’s approval at the time of and throughout such appointment, and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 8.14.
(d) The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 8.14.
(e) If an appointment of an Authenticating Agent with respect to one or more series is made pursuant to this Section 8.14, the Securities of such series may have endorsed thereon, in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| Wilmington Trust, National Association, as Trustee | ||
| By: _____________, as Authenticating Agent | ||
| By: _____________, its Authorized Signatory | ||
| Date: | ||
Section 8.15. Consequential Damages. Subject to Section 8.1(c), to the extent permitted by the Trust Indenture Act, as applicable, or any other applicable law, the Trustee shall not be liable to any Person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
Section 8.16. [Reserved]
56
Section 8.17. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, labor disputes, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, pandemics and epidemics (whether domestic or international), acts of civil or military authority or governmental actions, the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 8.18. USA PATRIOT Act. The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions, and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
ARTICLE IX
HOLDERS’ LISTS AND REPORTS BY TRUSTEE
Section 9.1. Company to Furnish Trustee Names and Addresses of Holders. If the Trustee is not the Security Registrar, the Company shall furnish or cause to be furnished to the Trustee:
(a) not later than 15 days after each Regular Record Date (or, if there is no Regular Record Date relating to a series, semi-annually on dates set forth in the supplemental indenture with respect to such series), a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished.
Section 9.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 9.1 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 9.1 upon receipt of a new list so furnished.
57
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 10.1. Supplemental Indentures without Consent of Holders. Without the consent of or notice to any Holders, the Company and the Trustee (at the direction of the Company) at any time and from time to time, may enter into one or more indentures supplemental hereto (including any related opinions, certificates and ancillary documents), in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) cure any ambiguity, mistake, omission, defect or inconsistency in this Indenture or conform the text or terms of this Indenture or any Securities to any provision of the description thereof in the related prospectus, offering memorandum or disclosure document relating to the original issuance of such Securities; provided that none of such materially and adversely affect the interests of any Holders;
(2) comply with the obligations under Article VI of this Indenture;
(3) add guarantees with respect to any Securities;
(4) secure any Securities;
(5) add to the Company’s covenants for the benefit of the Holders (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or surrender any right or power conferred upon the Company;
(6) add to the Events of Default with respect to any Securities (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
(7) evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series or to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11(b);
(8) modify the restrictions on, and procedures for, resale and other transfers of any Securities to the extent required by any change in applicable law or regulation, or the interpretation thereof, or in practices relating to the resale or transfer of restricted securities generally;
(9) to provide for the issuance of and establish the form and terms and conditions of the Securities of any series as provided by Section 2.1; or
(10) comply with any requirement of the Commission, including in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act, if applicable, or otherwise.
58
Section 10.2. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a majority in principal amount of Outstanding Securities of any series affected by such supplemental indenture (voting as one class with respect to such series) (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities), by Act of such Holders delivered to the Company and the Trustee, the Company and the Trustee (at the direction of the Company) may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of the Securities of such series or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture. Without the consent of the Holder of each Outstanding Security directly affected thereby, a supplemental indenture under this Section 10.2 shall not (with respect to any Outstanding Security held by a nonconsenting Holder):
(1) change the Stated Maturity of such Security or the stated time for payment of the principal of, or any installment of principal of or interest on, such Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of a Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 7.2, or adversely affect any right of repayment of such Security at the Holder’s option or the currency in which, the principal of such Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date) or modify the Securities of any series to subordinate such Securities to other Indebtedness;
(2) reduce the percentage in principal amount of the Outstanding Securities of the series for such Outstanding Security, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section 10.2 or Section 7.11, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security directly affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to “the Trustee” and concomitant changes in this Section 10.2, or the deletion of this proviso, in accordance with the requirements of Sections 8.11 and 10.1(9); or
(4) modify any guarantee, in a manner materially adverse to the Holders of the Securities.
(b) A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
59
(c) It shall not be necessary for any Act of Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
(d) Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder of that Security or any Security that evidences all or any part of the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. Any such Holder or subsequent Holder may revoke the consent as to such Holder’s Security by written notice to the Trustee or the Company, received by the Trustee or the Company, as the case may be, before the date on which the Trustee receives an Officer’s Certificate from the Company certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver. The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver. After an amendment, supplement or waiver becomes effective, it shall bind every Holder of Securities, unless it makes a change that is not permitted by this Indenture without the consent of each Holder affected thereby. In that case, the amendment, supplement or waiver shall bind each Holder of a Security who has consented to it and every subsequent Holder of such Security or any Security that evidences all or any part of the same debt as the consenting Holder’s Security.
Section 10.3. Execution of Amendments, Supplements or Waiver. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this Article if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may, but need not, sign it. In executing, or accepting the additional trusts created by, any amendment, supplement or waiver permitted by this Article or the modifications thereby of the trusts created by this Indenture, other than any supplemental indenture to be executed or any Security to be issued on the date hereof, the Trustee shall be entitled to receive, and (subject to Section 8.1) shall be fully protected in relying upon, an Officer’s Certificate and an Opinion of Counsel to the effect that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and complies with the provisions hereof, and, with respect to the Opinion of Counsel, that the amendment, supplement or waiver is the legal, valid and binding obligation of the Company, enforceable against them in accordance with its terms.
Section 10.4. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes. Every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. If an amendment, supplement or waiver changes the terms of a Security, the Trustee shall (if required by the Company and in accordance with the specific direction of the Company) request the Holder of the Security to deliver it to the Trustee. The Trustee shall (if required by the Company and in accordance with the specific direction of the Company) place an appropriate notation on the Security about the changed terms and return it to the Holder. Alternatively, if the Company or the Trustee so determines, the Company in exchange for the Security shall issue and the Trustee shall authenticate a new Security that reflects the changed terms. Failure to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver.
60
Section 10.5. Conformity with Trust Indenture Act. Following the qualification of this Indenture under the Trust Indenture Act, if ever, every amendment or supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act, as then in effect.
Section 10.6. Reference in Securities to Supplemental Indentures. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company, and such Securities may be authenticated and delivered by the Trustee, in exchange for Outstanding Securities of such series.
ARTICLE XI
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 11.1. Satisfaction and Discharge of Indenture.
(a) This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series (except as to any surviving rights of registration of transfer or exchange of Securities of such series and replacement of lost, stolen or mutilated Securities of such series herein expressly provided for and the rights of the Trustee and the obligations of the Company to the Trustee under Section 8.7), and the Trustee, on the written demand of and at the expense of the Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture with respect to such series, when:
(1) Either:
(A) all Securities of such series theretofore authenticated and delivered have been cancelled or delivered to the Trustee for cancellation (except destroyed, lost or stolen Securities of such series which have been replaced or paid and Securities of such series for whose payment an amount sufficient, without reinvestment, to pay and discharge the entire Indebtedness on the Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation, for principal and interest to Maturity (provided that if such redemption is made pursuant to the optional redemption provisions set forth in Section 3.8, (x) the amount that the Company must deposit or cause to be deposited will be determined using the assumed premium required to be paid in connection with such optional redemption calculated as of the date of such deposit, as calculated by the Company, in good faith, and (y) the Company must deposit or cause to be deposited additional money in trust on the Redemption Date as necessary to pay the premium as determined in accordance with such optional redemption provisions), has theretofore been deposited in trust or segregated and held in trust by the Company, and thereafter repaid to the Company or discharged from such trust); or
61
(B) all Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) have been or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of clause (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 8.9 who shall agree to comply with the provisions of this Article XI applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the Stated Maturity of any payment, money in an amount, or (C) a combination thereof, that is or are sufficient, without reinvestment, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) on and each installment of principal of (and premium on, if any) and interest on the Outstanding Securities of such series on the Maturity of such principal or installment of principal (and premium, if any) or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities (provided that if such redemption is made pursuant to the optional redemption provisions set forth in Section 3.8, (x) the amount that the Company must deposit or cause to be deposited will be determined using the assumed premium required to be paid in connection with such optional redemption calculated as of the date of such deposit, as calculated by the Company, in good faith, and (y) the Company must deposit or cause to be deposited additional money in trust on the Redemption Date as necessary to pay the premium as determined in accordance with such optional redemption provisions); and
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each to the effect that all conditions precedent herein provided for the satisfaction and discharge of this Indenture have been complied with; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (1) and (2)).
(b) At any time when no Securities of any series are outstanding, this Indenture shall upon Company Request cease to be of further effect and the Trustee, at the expense of the Company shall execute instruments of satisfaction and discharge of this Indenture.
62
(c) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 8.7 and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (a)(1) of this Section 11.1, the obligations of the Trustee under Section 11.6 and Section 5.3(e) shall survive.
Section 11.2. Company’s Option to Effect Defeasance or Covenant Defeasance. Unless provision is made for either or both of (a) defeasance of the Securities of another series under Section 11.3 not applicable with respect to the Securities of a particular series or (b) covenant defeasance of the Securities of another series under Section 11.4 not applicable with respect to the Securities of such particular series, then the provisions of such Sections, together with the other provisions of Sections 11.3, 11.4, 11.5 and 11.6, shall be applicable to the Securities of such particular series, and the Company may at its option, at any time, with respect to the Securities of such particular series, elect to have either Section 11.3 or Section 11.4 be applied to the Outstanding Securities of such series upon compliance with the conditions set forth below in Sections 11.3, 11.4, 11.5 and 11.6.
Section 11.3. Defeasance and Discharge. Upon the Company’s exercise of the option set forth in Section 11.2 and satisfaction of the conditions to defeasance set forth in Section 11.5, the Company shall be deemed to have been discharged from any and all obligations with respect to the Outstanding Securities of such series on the date the conditions set forth below are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense and written direction of the Company, shall execute instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 11.5 and as more fully set forth in such Section, payments in respect of the principal of (and premium, if any) and interest on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under Sections 2.4, 2.5, 2.6, 5.2 and 5.3, (C) the rights, powers, trusts, duties, and immunities of the Trustee under Sections 2.5, 2.6, 2.7, 2.8, 2.9, 5.3(e), 8.1, 8.3, 8.7, 8.10, 8.12, 8.15, 8.16, 8.17 and 11.6 and otherwise the duty of the Trustee to authenticate Securities of such series issued on registration of transfer or exchange and (D) Sections 11.3, 11.4, 11.5 and 11.6. Subject to compliance with Sections 11.3, 11.4, 11.5 and 11.6, the Company may exercise its option under this Section 11.3 notwithstanding the prior exercise of its option under Section 11.4 with respect to the Securities of such series.
Section 11.4. Covenant Defeasance. Upon the Company’s exercise of the option set forth in Section 11.2 and satisfaction of the conditions to defeasance set forth in Section 11.5, the Company shall be released from its obligations under Sections 5.4, 5.5 and 5.6 with respect to the specified series of Securities and any other covenants applicable to such series of Securities unless specified otherwise pursuant to such Section (and the failure to comply with any such provisions shall not constitute a default or Event of Default under Section 7.1), and the occurrence of any event described in Sections 7.1 (4) and any other events of default applicable to such series of Securities shall not constitute a default or Event of Default hereunder, with respect to the Outstanding Securities of such series on and after the date the conditions set forth below are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section with respect to it, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
63
Section 11.5. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 11.3 or Section 11.4 to the Outstanding Securities of such series:
(a) the Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 8.9 who shall agree to comply with the provisions of this Article XI applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than the Stated Maturity of any payment, money in an amount, or (C) a combination thereof, that is or are sufficient, without reinvestment, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium, if any) on and each installment of principal of (and premium, if any) and interest on the Outstanding Securities of such series on the Maturity of such principal or installment of principal (and premium, if any) or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to the Outstanding Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities (provided that if such redemption is made pursuant to the optional redemption provisions set forth in any Section 3.8, (x) the amount that the Company must deposit or cause to be deposited will be determined using an assumed premium required to be paid in connection with such optional redemption calculated as of the date of such deposit, as calculated by the Company in good faith, and (y) the Company must deposit or cause to be deposited additional money in trust on the Redemption Date as necessary to pay the premium as determined in accordance with such optional redemption provisions);
(b) no Event of Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other than an Event of Default resulting from borrowing of funds to be applied to such deposit and the grant of any lien securing such borrowing);
(c) in the event that this Indenture is then qualified under the Trust Indenture Act, such defeasance or covenant defeasance shall not cause the Trustee for the Securities of such series to have a conflicting interest for purposes of the Trust Indenture Act with respect to any securities of the Company;
(d) such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound;
64
(e) in the case of an election under Section 11.3, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that (x) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm to the effect that, the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; provided that such Opinion of Counsel need not be delivered if all Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation have become due and payable, will become due and payable at their Stated Maturity within one year, or have been or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(f) in the case of an election under Section 11.4, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred; provided that such Opinion of Counsel need not be delivered if all Securities of such series not theretofore cancelled or delivered to the Trustee for cancellation have become due and payable, will become due and payable at their Stated Maturity within one year, or have been or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(g) such defeasance or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section 2.1; and
(h) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent relating to either the defeasance under Section 11.3 or the covenant defeasance under Section 11.4, as the case may be, have been complied with.
Section 11.6. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
(a) Subject to the provisions of Section 5.3(e), all money deposited with the Trustee (or other qualifying trustee, collectively, for purposes of this Section 11.6, the “Trustee”), all money and U.S. Government Obligations deposited with the Trustee and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee, pursuant to Section 11.1 or 11.5, in respect of the Outstanding Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law.
65
(b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 11.5 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the Outstanding Securities of such series.
(c) Anything in this Article XI to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by it as provided in Section 11.5 which are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance and pay any obligations owed or accrued in favor of the Trustee.
Section 11.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or U.S. Government Obligations in accordance with Section 11.2 or 11.3, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Securities shall be revived and reinstated as though no deposit had occurred pursuant to Section 11.2 or 11.3, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with Section 11.2 or 11.3, as the case may be; provided that if the Company makes any payment of principal, premium, if any, or interest on any Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Trustee and the Holders of such Securities to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent.
Section 11.8. Repayment to the Company. The Trustee shall pay to the Company upon Company Request any money held by the applicable party for the payment of principal or interest that remains unclaimed for two years after the Stated Maturity or the Redemption Date, as the case may be. After payment to the Company Holders entitled to money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another Person and all liability of the Trustee or Paying Agent with respect to such money shall thereupon cease.
* * * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
[The remainder of this page is intentionally left blank.]
66
The parties hereto caused this Indenture to be duly executed as of the date first set forth above.
| American National Group, Inc., as Issuer | |||
| By: | /s/ Brody J. Merrill | ||
| Name: | Brody J. Merrill | ||
| Title: | Senior Vice President and Chief Financial Officer | ||
| Wilmington Trust, National Association, as Trustee | |||
| By: | /s/ Arlene Thelwell | ||
| Name: | Arlene Thelwell | ||
| Title: | Vice President | ||
[Signature Page to the Indenture]
Annex A
[Note: See Section 2.14 of the Indenture for applicable legends.]
AMERICAN NATIONAL GROUP, INC.
[•]% Senior Notes due [•]
| No. [•] | CUSIP NO. [•] |
| $[•] | ISIN: [•] |
American National Group, Inc., a Delaware corporation (the “Company”, which term includes any successor in interest under the Indenture hereinafter referred to, but in no event shall include the parent companies, Subsidiaries or Affiliates of any such Company), for value received, hereby promises to pay to [Cede & Co.], or registered assigns, the principal sum of [•] U.S. Dollars (U.S. $[•]) (or such lesser or greater amount as shall be outstanding hereunder from time to time in accordance with Sections 2.12 and 2.13 of the Indenture referred to on the reverse hereof) on [•] and to pay interest thereon at a rate of [•]% per year, accruing from and including [•] (or the most recent Interest Payment Date to which interest on the Notes has been paid or made available for payment), payable in arrears on [•] and [•] of each year, beginning [•] (each such date, an “Interest Payment Date”), and at the Maturity, until the principal hereof is paid or made available for payment.
Each interest payment due on an Interest Payment Date or the Maturity will include interest accrued from and including the most recent Interest Payment Date to which interest on the Notes has been paid or made available for payment (or, if no interest has been paid, [•]) to but excluding the next Interest Payment Date or the Maturity or any Redemption Date, as the case may be. Interest on the Notes will be computed on the basis of a 360-day year composed of twelve 30-day months. If any Interest Payment Date falls on a date that is not a Business Day, such payment of interest (or principal in the case of the final Maturity for the Notes) will be postponed until the next succeeding Business Day, but no interest or other amount will be paid as a result of any such postponement, and such payment will have the same force and effect as if made on the scheduled Interest Payment Date.
Interest on each Interest Payment Date shall be payable to the Person in whose name the Notes are registered at the close of business on the regular record date for such Interest Payment Date, which shall be the [•] or [•] (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date (each, a “Regular Record Date”); provided, however, that interest due on the Maturity or any Redemption Date (in each case, whether or not an Interest Payment Date) will be paid to the Person to whom principal of such Notes is payable (subject to the rights of Holders on the relevant Regular Record Date to receive interest due on any Interest Payment Date preceding such Maturity or Redemption Date). Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more predecessor securities) is registered at the close of business on a Special Record Date for the payment of such defaulted interest to be fixed by the Company, notice of which shall be given to Holders of Notes of this series not less than five days prior to such Special Record Date, as more fully provided in the Indenture.
A-1
Annex A
Payment of the principal of (and premium, if any) and/or interest on this Note shall be made at the Corporate Trust Office of the Trustee, or such other office or agency of the Company, in such currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided that, for so long as the Notes are represented in global form by one or more Global Securities, all payments of principal and interest shall be made by wire transfer of immediately available funds to the Depositary or its nominee, as the case may be, as the registered owner of the Global Security representing such Notes. In the event that certificated Notes shall have been issued, all payments of principal and interest shall be made by wire transfer of immediately available funds to the accounts of the registered Holders thereof or, if no such account is specified, by mailing a check to the registered address of each Holder of a certificated Note.
All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
[The remainder of this page is intentionally left blank.]
A-2
Annex A
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
| American National Group, Inc., as Issuer | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
Annex A
This is one of the Securities of the series designated therein issued under the within mentioned Indenture.
| Wilmington Trust, National Association, as Trustee | ||
| By: | ||
| Its Authorized Signatory | ||
| Date: |
A-4
Annex A
[Form of Reverse of Note]
This Note is one of a duly authorized issuance of Securities of the Company (the “Notes”), issued and to be issued in one or more series under the Indenture, dated as of June 13, 2022 (the “Indenture”), among the Company and Wilmington Trust, National Association, as Trustee (the “Trustee,” which term includes any successor trustee under the Indenture). Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be, authenticated and delivered. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act, if applicable. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act, if applicable for a statement of such terms. To the maximum extent permitted by law, in the case of any conflict between the provisions of this Note and the Indenture, the provisions of the Indenture shall control.
This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to $[•]. The Company may at any time issue additional debt securities under the Indenture. The Company may at any time issue Additional Securities under the Indenture having the same terms as the series of Notes designated on the face hereof (except as otherwise provided in the Indenture) so that such Additional Securities shall be consolidated with such designated series of Notes, including for purposes of voting and redemption; provided, however, that the Company shall use a separate CUSIP for any such Additional Securities that (a) are not part of the same issue as the Notes within the meaning of U.S. Treasury Regulations sections 1.1275-1(f) and 1.1275-2(k) and (b) have, for purposes of U.S. federal income taxation, more than a de minimis amount of original issue discount as of the date of the issue of such Additional Securities. Any such Additional Securities shall, together with the outstanding Notes of the series designated on the face hereof, constitute a single series of such Notes.
Optional Redemption of Notes
Prior to the Maturity, the Company may redeem the Notes of this series in whole or in part, at its option, as provided in the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof; provided that the principal amount of any such Note remaining outstanding after a redemption in part shall be $2,000 or any integral multiple of $1,000 in excess thereof.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption. On or prior to any Redemption Date, the Company is required to deposit with a paying agent funds sufficient to pay the Redemption Price of and accrued and unpaid interest on the Notes to be redeemed on such Redemption Date. If the Company is redeeming less than all the Notes, the Trustee must select the Notes to be redeemed pro rata, by lot or any other such method as the Trustee deems fair and appropriate, and otherwise in accordance with the customary procedures of the Depositary.
A-5
Annex A
General Terms
The Indenture contains provisions for defeasance at any time of the entire Indebtedness of this Note and certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture or the Notes of any series thereunder may be amended or supplemented, and compliance with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences may be waived, in each case as provided in the Indenture.
The Notes will not be entitled to the benefit of a sinking fund.
As provided in and subject to the provisions of the Indenture, the Holder of this Note may pursue a remedy with respect to the Indenture or this Note only if (i) such Holder gives to the Trustee written notice of a continuing Event of Default; (ii) the Holders of at least 25% in aggregate principal amount of the Outstanding Notes of that series make a written request to the Trustee to pursue the remedy; (iii) such Holder or Holders have offered, and if requested provided, to the Trustee indemnity or security reasonably satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such written request; (iv) the Trustee for 60 days after receipt of the notice, request and offer of indemnity or security has failed to institute any such proceeding; and (v) during such 60-day period the Holders of a majority in principal amount of the Outstanding Notes of the series affected have not given the Trustee a direction inconsistent with the request. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any interest hereon on or after the respective Stated Maturities expressed herein.
A-6
Annex A
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any interest on this Note at the times, place and rate, and in the currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Registrar’s books, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or the Holder’s attorney duly authorized in writing, and thereupon one or more new Note or Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, shall be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series and of like tenor of a different authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made to a Holder for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company, or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Trustee or any such agent shall be affected by notice to the contrary.
This Note and the Indenture shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any other jurisdiction (other than Sections 5-1401 and 5-1402 of the New York General Obligations Law).
* * *
A-7
Annex A
[FORM OF CERTIFICATE OF TRANSFER]
FOR VALUE RECEIVED the undersigned holder hereby sell(s), assign(s) and transfer(s) unto
| Insert Taxpayer Identification No.: | |||
| (Please print or typewrite name and address including zip code of assignee) | |||
| the within Note and all rights thereunder, hereby irrevocably constituting and appointing | |||
attorney to transfer such Note on the books of the Company with full power of substitution in the premises.
Check One:
¨ (a) this Note is being transferred in compliance with the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder.
or
¨ (b) this Note is being transferred other than in accordance with (a) above and documents are being furnished which comply with the conditions of transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Security Registrar shall not be obligated to register this Note in the name of any Person other than the Holder hereof unless and until the conditions to any such transfer of registration set forth herein and in Section 2.13 of the Indenture shall have been satisfied.
Date:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within-mentioned instrument in every particular, without alteration or any change whatsoever.
| Signature Guarantee: |
A-8
Annex A
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
A-9
Annex A
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
| Name: | |||
| By: | |||
| Dated: | |||
| NOTE: To be executed by an executive officer | |||
A-10
Annex A
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
| Date of Exchange | Amount of decreases in Principal Amount of this Global Security |
Amount of increases in Principal Amount of this Global Security |
Principal amount of this Global Security following such decreases or increases |
Signature of authorized signatory of Trustee | ||||
A-11
Exhibit 4.2
ASSUMPTION Supplemental Indenture
This fIRST Supplemental Indenture, dated as of May 7, 2024 (this “Assumption Supplemental Indenture”), is entered into by and between American Equity Investment Life Holding Company, an Iowa corporation (to be renamed American National Group Inc. and redomiciled in the State of Delaware following consummation of the Merger (as defined below)) (“AEL”), and Wilmington Trust, National Association, as trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, American National Group, LLC (formerly known as American National Group, Inc.), a Delaware limited liability company (“ANAT”), and the Trustee have heretofore executed and delivered an indenture, dated as of June 13, 2022 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), providing for the issuance of 6.144% Senior Notes due 2032 (the “Notes”) with an initial aggregate principal amount of $500,000,000;
WHEREAS, pursuant to a corporate restructuring plan, on May 7, 2024, ANAT shall merge with and into AEL (the “Merger”), and at the effective time of the Merger (the “Merger Effective Time”), the separate corporate existence of ANAT will cease and AEL will continue as the surviving corporation in the Merger;
WHEREAS, the Indenture permits the Merger, provided that immediately after giving effect to the Merger no default or event of default has occurred and is continuing under the Indenture and AEL shall expressly assume by supplemental indenture all of ANAT’s obligations under the Notes and the Indenture in accordance with Section 6.1 of the Indenture;
WHEREAS, pursuant to Section 10.1(2) of the Indenture, each of AEL and the Trustee is authorized to execute and deliver this Assumption Supplemental Indenture to amend or supplement the Indenture without the consent of or notice to any Holders; and
WHEREAS, all things necessary have been done to make this Assumption Supplemental Indenture a valid and legally binding agreement of AEL, in accordance with its terms.
NOW, THEREFORE, for and in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree, for the equal and proportionate benefit of the Holders of the Notes as follows:
(1) Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to such terms in the Indenture.
(2) Agreement to Assume Obligations. AEL hereby expressly assumes, effective as of the Merger Effective Time, all of ANAT’s obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture and to be bound by all other provisions of the Indenture applicable to the Company and to perform all of the obligations and agreements of the Company under the Indenture. For the avoidance of doubt, effective as of the Merger Effective Time, (i) AEL shall succeed to and be substituted for, and may exercise every right and power of, ANAT under the Notes and the Indenture and (ii) all references to the “Company” or “ANAT” in the Notes and the Indenture shall be deemed references to AEL.
(3) Execution and Delivery; Effectiveness. AEL agrees that its obligations under the Notes shall remain in full force and effect notwithstanding the absence of the endorsement of any notation by it on the Notes. AEL shall provide written notice (which may be by e-mail) to the Trustee of the occurrence of the Merger Effective Time.
1
(4) Governing Law. THIS ASSUMPTION SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
(5) Counterparts; Electronic Signatures. This Assumption Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. The words “execute”, “execution”, “signed”, and “signature” and words of similar import used in this Assumption Supplemental Indenture shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
(6) Separability Clause. In case any provision in this Assumption Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(7) Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
(8) Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Assumption Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
(9) Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity, sufficiency or adequacy of this Assumption Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by AEL.
[Signature Page Follows]
2
IN WITNESS WHEREOF, the parties hereto have caused this Assumption Supplemental Indenture to be duly executed, all as of the date first above written.
| AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY |
| by: | ||
| /s/ Timothy A. Walsh | ||
| Name: Timothy A. Walsh | ||
| Title: President and Chief Executive Officer |
| wilmington trust, National Association, as Trustee |
| by: | ||
| /s/ Arlene Thelwell | ||
| Name: Arlene Thelwell | ||
| Title: Vice President |
[Signature Page to Assumption Supplemental Indenture]
Exhibit 10.1
TERM LOAN AGREEMENT
dated as of
May 7, 2024,
among
AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY, as the Company,
the BANKS party hereto from time to time, and
BANK OF MONTREAL,
as Administrative Agent
BMO CAPITAL MARKETS CORP.,
ROYAL BANK OF CANADA,
BNP PARIBAS SECURITIES CORP.,
CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH,
HSBC BANK USA, NATIONAL ASSOCIATION,
MIZUHO BANK, LTD.,
THE TORONTO-DOMINION BANK, NEW YORK BRANCH,
U.S. BANK NATIONAL ASSOCIATION,
WELLS FARGO SECURITIES, LLC,
BARCLAYS BANK PLC,
CITIBANK, N.A.,
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
and
PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
| Page | ||
| ARTICLE I | ||
| DEFINITIONS | ||
| Section 1.01 | Definitions | 1 |
| Section 1.02 | Other Definitions and Provisions | 31 |
| Section 1.03 | Accounting Terms and Determinations | 31 |
| Section 1.04 | Rounding | 32 |
| Section 1.05 | References to Agreement and Laws | 32 |
| Section 1.06 | Times of Day | 32 |
| Section 1.07 | Classification of Term Loans and Borrowings | 32 |
| Section 1.08 | Divisions | 32 |
| Section 1.09 | Compliance with this Agreement | 32 |
| ARTICLE II | ||
| THE CREDITS | ||
| Section 2.01 | Loans | 33 |
| Section 2.02 | Notice of Borrowings; Interest Elections | 33 |
| Section 2.03 | Funding of Term Loans | 34 |
| Section 2.04 | Evidence of Term Loans | 35 |
| Section 2.05 | Maturity of Term Loans | 36 |
| Section 2.06 | Interest Rates of Term Loans | 36 |
| Section 2.07 | Fees | 37 |
| Section 2.08 | Incremental Commitments | 37 |
| Section 2.09 | Optional Prepayments | 39 |
| Section 2.10 | Payments Generally; Pro Rata Treatment | 39 |
| Section 2.11 | Funding Losses | 40 |
| Section 2.12 | Computation of Interest and Fees | 41 |
| Section 2.13 | Defaulting Banks | 41 |
| ARTICLE III | ||
| CONDITIONS | ||
| Section 3.01 | Closing Date | 42 |
| Section 3.02 | Each Credit Event After the Closing Date | 43 |
| ARTICLE IV | ||
| REPRESENTATIONS AND WARRANTIES | ||
| Section 4.01 | Corporate Existence and Power | 44 |
| Section 4.02 | Corporate and Governmental Authorization; Non-Contravention | 44 |
| Section 4.03 | Binding Effect | 44 |
| Section 4.04 | Financial Information | 45 |
i
| Section 4.05 | Litigation | 45 |
| Section 4.06 | Compliance with ERISA | 45 |
| Section 4.07 | Not an Investment Company | 45 |
| Section 4.08 | Full Disclosure | 45 |
| Section 4.09 | Margin Regulations | 46 |
| Section 4.10 | Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act | 46 |
| Section 4.11 | Compliance with Laws | 46 |
| ARTICLE V | ||
| COVENANTS | ||
| Section 5.01 | Information | 46 |
| Section 5.02 | Payment of Tax Obligations | 48 |
| Section 5.03 | Conduct of Business and Maintenance of Existence | 48 |
| Section 5.04 | Maintenance of Property; Insurance | 49 |
| Section 5.05 | Compliance with Laws | 49 |
| Section 5.06 | Inspection of Property, Books and Records | 49 |
| Section 5.07 | Financial Covenants | 49 |
| Section 5.08 | Negative Pledge | 50 |
| Section 5.09 | Consolidations, Mergers and Sales of Assets | 50 |
| Section 5.10 | Use of Proceeds | 50 |
| Section 5.11 | Transactions with Affiliates | 51 |
| Section 5.12 | Certain Debt | 51 |
| Section 5.13 | Restricted Payments | 53 |
| ARTICLE VI | ||
| DEFAULTS | ||
| Section 6.01 | Events of Default | 54 |
| Section 6.02 | Cure Right | 57 |
| ARTICLE VII | ||
| THE ADMINISTRATIVE AGENT | ||
| Section 7.01 | Appointment and Authorization | 57 |
| Section 7.02 | Agent’s Fee | 58 |
| Section 7.03 | [Reserved] | 58 |
| Section 7.04 | Action by Agent | 58 |
| Section 7.05 | Erroneous Payments | 58 |
| Section 7.06 | Liability of Agent | 61 |
| Section 7.07 | Indemnification | 61 |
| Section 7.08 | Credit Decision | 61 |
| Section 7.09 | Successor Agent | 62 |
| Section 7.10 | Delegation to Affiliates | 62 |
| Section 7.11 | Joint Lead Arrangers and Joint Bookrunners | 62 |
| Section 7.12 | Certain ERISA Matters | 62 |
ii
| ARTICLE VIII | ||
| CHANGE IN CIRCUMSTANCES | ||
| Section 8.01 | Benchmark Replacement Setting | 63 |
| Section 8.02 | Illegality | 65 |
| Section 8.03 | Increased Cost and Reduced Return | 65 |
| Section 8.04 | Base Rate Term Loans Substituted for Affected SOFR Loans | 67 |
| Section 8.05 | Taxes | 67 |
| Section 8.06 | Inability to Determine Rates | 71 |
| Section 8.07 | Mitigation Obligations; Replacement of Banks | 71 |
| ARTICLE IX | ||
| MISCELLANEOUS | ||
| Section 9.01 | Notices | 72 |
| Section 9.02 | No Waivers | 73 |
| Section 9.03 | Expenses; Indemnification; Limitation of Liability | 73 |
| Section 9.04 | Sharing of Payments | 75 |
| Section 9.05 | Amendments and Waivers | 75 |
| Section 9.06 | Successors and Assigns | 76 |
| Section 9.07 | [Reserved] | 77 |
| Section 9.08 | New York Law | 77 |
| Section 9.09 | Judicial Proceedings | 78 |
| Section 9.10 | Counterparts; Integration; Headings; Electronic Execution | 78 |
| Section 9.11 | Confidentiality | 79 |
| Section 9.12 | WAIVER OF JURY TRIAL | 79 |
| Section 9.13 | Certain Notices | 80 |
| Section 9.14 | No Fiduciary Duty | 80 |
| Section 9.15 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 80 |
| Section 9.16 | Right of Setoff | 81 |
iii
SCHEDULES
| I | Term Commitments |
| II | Permitted Liens |
| III | Transactions with Affiliates |
| IV | Certain Debt |
EXHIBITS
| A | Form of Assignment and Assumption |
| B | Form of Compliance Certificate |
| C | Form of Note |
| D | Form of Solvency Certificate |
| E | Form of Notice of Borrowing |
| F | Form of Interest Election Request |
| G | Form of Prepayment Notice |
| H-1 | Form of US Tax Compliance Certificate |
| H-2 | Form of US Tax Compliance Certificate |
| H-3 | Form of US Tax Compliance Certificate |
| H-4 | Form of US Tax Compliance Certificate |
| I | Form of Incremental Assumption Agreement |
i
This TERM LOAN AGREEMENT, dated as of May 7, 2024 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”), is entered into among AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY, an Iowa corporation (“AEL” or the “Company”), which shall be merged with and into AMERICAN NATIONAL GROUP, LLC, with AEL surviving such merger, the BANKS from time to time party hereto and BANK OF MONTREAL, as administrative agent (in such capacity, the “Administrative Agent”).
RECITALS
Pursuant to that certain Agreement and Plan of Merger, dated as of July 4, 2023 (the “AEL Acquisition Agreement”), by and among Parent (as defined below), Arches Merger Sub Inc., a Delaware corporation (“Merger Sub”), AEL and BAM (as defined below), Parent has acquired all outstanding equity interests of the Company indirectly, by means of a merger of Merger Sub with and into AEL, with AEL surviving such merger (the “AEL Merger”).
Pursuant to that certain Agreement and Plan of Merger, dated as of May 7, 2024, by and between AEL and American National Group, LLC, it is intended that American National Group, LLC merge with and into AEL, with AEL surviving such merger (the transactions described in this sentence, the “Reorganization”).
Merger Sub has requested that the Banks make term loans to the Company on the Closing Date in an aggregate principal amount of $1,750,000,000, and the Banks are prepared to make such term loans on the terms and conditions hereof. Accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. The following terms, as used herein, have the following meanings:
“Acquired Debt” means Debt of the Company or any Subsidiary acquired pursuant to an acquisition not prohibited under this Agreement (or Debt assumed at the time of such acquisition of an asset securing such Debt); provided that such Debt was not incurred in connection with, or in anticipation or contemplation of, such acquisition.
“AEL” has the meaning set forth in the preamble to this Agreement.
“AEL Acquisition Agreement” has the meaning set forth in the recitals to this Agreement.
“AEL Merger” has the meaning set forth in the recitals to this Agreement.
“Acquisition Agreement Representations” means the representations and warranties made by, or on behalf of, AEL and its subsidiaries in the AEL Acquisition Agreement as are material to the interests of the Banks, but only to the extent that Merger Sub has (or any of its subsidiaries or Affiliates has) the right to terminate its obligations under the AEL Acquisition Agreement, or the right to elect not to consummate the AEL Merger (or otherwise not have an obligation to close), as a result of a breach of one or more of such representations and warranties in the AEL Acquisition Agreement.
“Additional Securities” means any preferred Capital Stock of the Company.
“Adjusted Consolidated Net Worth” means, at any date, without duplication, the consolidated shareholders’ equity, determined in accordance with GAAP, of the Company and its Consolidated Subsidiaries; provided that, in determining such Adjusted Consolidated Net Worth, there shall be excluded (i) any “Accumulated Other Comprehensive Income (Loss)” shown on the consolidated balance sheet of the Company and its Consolidated Subsidiaries prepared in accordance with GAAP, (ii) any charge taken to write off any goodwill included on the consolidated balance sheet of the Company and its Consolidated Subsidiaries on the Closing Date to the extent such charges are required by FASB ASC 350, (iii) the effects of FAS 133 adjustments for derivatives and embedded derivatives and (iv) all noncontrolling equity interests in subsidiaries (as determined in accordance with FASB ASC 160) shown on the consolidated balance sheet of the Company and its Consolidated Subsidiaries; provided further that, Adjusted Consolidated Net Worth shall not be reduced by the outstanding principal amount of any Shareholder Loans.
“Adjusted Daily Simple SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Daily Simple SOFR for such calculation plus (b) the Daily Simple SOFR Adjustment.
“Adjusted Term SOFR” means, for purposes of any calculation, the rate per annum equal to (a) Term SOFR for such calculation plus (b) the Term SOFR Adjustment.
“Administrative Agent” has the meaning set forth in the preamble to this Agreement.
“Administrative Questionnaire” means, with respect to each Bank, an administrative questionnaire in the form prepared by the Administrative Agent and submitted to the Administrative Agent duly completed by such Bank.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” of any Person means any other Person that, directly or indirectly (through one or more intermediates), Controls or is Controlled by or is under common Control with such Person. For purposes of this definition, “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, but excluding any Person that would be an “Affiliate” solely because it is an unrestricted portfolio company of Parent. “Controlling” and “Controlled” have meanings correlative thereto.
“Agreement” has the meaning set forth in the preamble to this Agreement.
“Anti-Corruption Laws” has the meaning set forth in Section 4.10.
“Anti-Money Laundering Laws” has the meaning set forth in Section 4.10.
“Applicable Lending Office” means, as to each Bank, its office, branch or Affiliate located at its address set forth in its Administrative Questionnaire or such other office, branch or Affiliate of such Bank as it may hereafter designate as its Applicable Lending Office for purposes hereof by notice to the Company and the Administrative Agent.
2
“Applicable Margin” means, for any day, with respect to the interest margin on any Base Rate Term Loan or SOFR Loan, as the case may be, the applicable rate per annum set forth below under the caption “Applicable Margin (Base Rate Term Loans)” or “Applicable Margin (SOFR Loans)”, respectively, based upon (a) initially, the Debt to Capitalization Ratio of the Company set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 5.01(c) (provided that, prior to the delivery of the Compliance Certificate, the Applicable Margin shall be determined by reference to Category 3) and (b) from and after the date Debt Ratings giving effect to the Transactions become publicly available (the “Debt Ratings Availability Date”), the applicable Debt Ratings of the Company from Moody’s and/or S&P, in each case, with a negative or better outlook:
| Status | Debt to Capitalization Ratio: |
Debt Rating: | Applicable Margin (SOFR Loans): |
Applicable Margin (Base Rate Term Loans): |
| Category 1 | ≤ 0.20:1.00 | ≥ BBB+/Baa1 | 1.125% | 0.125% |
| Category 2 | > 0.20:1.00 ≤ 0.25:1.00 |
BBB/Baa2 | 1.250% | 0.250% |
| Category 3 | > 0.25:1.00 ≤ 0.30:1.00 | BBB-/Baa3 | 1.500% | 0.500% |
| Category 4 | > 0.30:1.00 | < BBB-/Baa3 | 1.750% | 0.750% |
For purposes of the foregoing, prior to the Debt Ratings Availability Date each change in the Applicable Margin resulting from a change in the Debt to Capitalization Ratio shall be effective as of the first Business Day immediately following the date of delivery to the Administrative Agent of a Compliance Certificate pursuant to Section 5.01(c) indicating such change until the first Business Day immediately following the next date of delivery of a Compliance Certificate indicating another such change.
For purposes of the foregoing, following the Debt Ratings Availability Date, (a) if the Debt Ratings shall fall within different Categories that are one Category apart, the Applicable Margin shall be determined by reference to the Category of the higher of the two ratings; (b) if the Debt Ratings shall fall within different Categories that are two Categories apart, the Applicable Margin shall be determined by reference to the Category that is one level lower than the Category of the higher Debt Rating; provided that, in the circumstances set forth in clauses (a) and (b) above, if the lesser rating is worse than BBB-/Baa3, the Applicable Margin shall be determined by reference to Category 4; (c) if none of Moody’s or S&P shall have in effect a rating for the Index Debt (other than by reason of the circumstances referred to in the penultimate sentence of this definition), the Applicable Margin shall be determined by reference to Category 4, (d) if only one of Moody’s and S&P shall have in effect a rating for the Index Debt, the Applicable Margin shall be determined by reference to the Category applicable to such available rating; and (e) if the Debt Ratings shall be changed (other than as a result of a change in the rating system of Moody’s or S&P), such change shall be effective as of the date on which it is first publicly announced by the applicable rating agency, irrespective of when notice of such change shall have been furnished by the Company to the Administrative Agent and the Banks pursuant to Section 5.01 or otherwise. Prior to the Debt Ratings Availability Date, the Applicable Margin will be determined by reference to the Debt to Capitalization Ratio.
3
Each change in the Applicable Margin shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody’s or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company and the Banks shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, following the Debt Ratings Availability Date the Applicable Margin shall be determined by reference to the rating of Moody’s and/or S&P, as the case may be, most recently in effect prior to such change or cessation. References herein to “Applicable Margin” shall refer to the Applicable Margin for the relevant Type of Term Loan, as applicable.
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in its ordinary course of activities, and is administered or managed by a Bank, an entity that administers or manages a Bank, or an Affiliate of either.
“Assignee” has the meaning set forth in Section 9.06(c).
“Assignment and Assumption” means an assignment and assumption entered into by a Bank and an Assignee (with the consent of any party whose consent is required by Section 9.06), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
“ASU” has the meaning set forth in Section 1.03(c).
“Automatic Continuation Election” has the meaning set forth in Section 2.02(a)(iv).
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if such Benchmark is a term rate, any tenor for such Benchmark (or component thereof) that is or may be used for determining the length of an interest period pursuant to this Agreement or (y) otherwise, any payment period for interest calculated with reference to such Benchmark (or component thereof) that is or may be used for determining any frequency of making payments of interest calculated with reference to such Benchmark pursuant to this Agreement, in each case, as of such date and not including any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 8.01(d).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“BAM” means Brookfield Asset Management Ltd., a company incorporated under the laws of the Province of British Columbia (together with its controlled affiliates and funds, partnerships or other co-investment vehicles managed or advised by it or its controlled affiliates).
4
“Bank” means each Person listed under the caption “BANKS” on the signature pages hereof, and each other Person that shall become a party hereto as a Bank pursuant to Section 2.08 or pursuant to an Assignment and Assumption or other instrument executed hereunder (other than any such Person that ceases to be a Bank by means of assignment pursuant to this Agreement), together with its successors; provided that any Bank may elect to perform any of its obligations under this Agreement or other Credit Document by acting through one or more of its Affiliates or branches; provided, further, that any exercise of such option shall not affect the obligation of the Company to repay such obligation in accordance with the terms of this Agreement.
“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, rehabilitation or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a governmental body, agency or official or instrumentality thereof as long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such governmental body, agency or official or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.
“Base Rate” means, for any day, the rate per annum equal to the greatest of: (a) the Prime Rate in effect for such day, (b) the sum of (i) the Federal Funds Rate in effect on such day plus (ii) 0.50%, and (c) the sum of (i) Adjusted Term SOFR for a one-month tenor in effect on such day (or, if Daily Simple SOFR has replaced Term SOFR pursuant to Section 8.01 or 8.06, Adjusted Daily Simple SOFR in effect for such day) plus (ii) 1.00%. Any change in the Base Rate due to a change in the Prime Rate, the Federal Funds Rate or Term SOFR (or, if Daily Simple SOFR has replaced Term SOFR pursuant to Section 8.01 or 8.06, Daily Simple SOFR), as applicable, shall be effective from and including the effective date of the change in such rate. If the Base Rate is being used as an alternative rate of interest pursuant to Sections 8.01 or 8.06, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above; provided that if Base Rate as determined above shall ever be less than the Floor, then Base Rate shall be deemed to be the Floor.
“Base Rate Borrowing” means, as to any Borrowing, the Base Rate Term Loan comprising such Borrowing.
“Base Rate Term Loan” means the portion of the Term Loans that bears interest by reference to the Base Rate in accordance with the applicable Notice of Borrowing, Article VIII or as otherwise set forth herein.
“Benchmark” means, initially, the Term SOFR Reference Rate; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR Reference Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 8.01(a).
5
“Benchmark Replacement” the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1) Adjusted Daily Simple SOFR;
(2) the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, (a) for purposes of clause (1) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrative Agent: (i) the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the time that such Benchmark Replacement is first set for such Interest Period that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor; or (ii) the spread adjustment (which may be a positive or negative value or zero) as of the time such Benchmark Replacement is first set for such Interest Period that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and (b) for purposes of clause (2) of the definition of “Benchmark Replacement,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company giving due consideration to (ii) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities
“Benchmark Replacement Conforming Changes” means, with respect to the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period” or any similar or analogous definition (or the addition of a concept of “interest period”), timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, the applicability and length of lookback periods, the applicability of Section 2.11 and other technical, administrative or operational matters) that the Administrative Agent decides, in consultation with the Company, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of any such rate exists, in such other manner of administration as the Administrative Agent decides, in consultation with the Company, is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).
6
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be non-representative; provided that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
Notwithstanding anything herein to the contrary, the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
(1) a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof);
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board, the NYFRB, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Benchmark (or such component thereof) or, if such Benchmark is a term rate, any Available Tenor of such Benchmark (or such component thereof); or
7
(3) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such Benchmark (or such component thereof) or, if such Benchmark is a term rate, all Available Tenors of such Benchmark (or such component thereof) are not, or as of a specified future date will not be, representative.
Notwithstanding anything herein to the contrary, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 8.01 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 8.01.
“Beneficial Ownership Certification” means a certification regarding beneficial ownership or control as required by the Beneficial Ownership Regulation.
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
“Benefit Arrangement” means at any time an employee benefit plan within the meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and which is maintained or otherwise contributed to by any member of the ERISA Group.
“Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.
“Board” means the Board of Governors of the Federal Reserve System of the United States.
“Borrowing” means Term Loans of the same Type that are made, converted or continued on the same date and, in the case of Term SOFR Loans, as to which a single Interest Period is in effect.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City or Toronto are authorized by law to close.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing; provided that, any instrument evidencing Debt convertible or exchangeable for Capital Stock shall not be deemed to be Capital Stock unless and until such interest is so converted or exchanged.
8
“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any Law, rule, regulation or treaty, (b) any change in any Law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority.
“Change of Control” means any event or series of events by which any person or group of persons (within the meaning of Section 13 or 14 of the Exchange Act) other than Permitted Holders shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Exchange Act) of 50% or more of the aggregate voting power represented by the issued and outstanding common Capital Stock of the Company.
“Class”, when used in reference to any Loan or Borrowing, refers to Term Loans or Loans under any Incremental Facility, and when used in reference to any Commitment, refers to Term Commitments or Commitments under any Incremental Facility.
“Closing Date” means the date this Agreement becomes effective in accordance with Section 3.01.
“Closing Date Refinancing” means the repayment of all principal, accrued and unpaid interest, fees, premium, if any, and other amounts outstanding under and with respect to the Existing Credit Agreements (other than contingent obligations not then due and payable and that by their terms survive the termination of the applicable Existing Credit Agreement) and the termination of all commitments in respect thereof.
“Closing Date Trust Preferred Securities” means preferred securities issued by American Equity Capital Trust II as of the Closing Date.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commitment” means, as to any Bank, the Term Commitment of such Bank and any commitment under any Incremental Facility.
“Company” has the meaning set forth in the preamble to this Agreement.
“Compliance Certificate” means a certificate substantially in the form attached hereto as Exhibit B.
“Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which would be consolidated with those of the Company in its consolidated financial statements if such statements were prepared as of such date; provided that, for purposes of Section 5.01, the term “Consolidated Subsidiary” shall include each of the Investment Entities to the extent the accounts of such entity are required to be (and are) consolidated with those of the Company in its consolidated financial statements in accordance with GAAP.
“Consolidated Total Capitalization” means, at any date, for the Company and its Consolidated Subsidiaries, the sum of, without duplication, (a) Consolidated Total Indebtedness plus (b) Adjusted Consolidated Net Worth.
9
“Consolidated Total Indebtedness” means, at any date, for the Company and its Consolidated Subsidiaries, the sum of, without duplication, (a) the aggregate amount of all Non-Operating Indebtedness plus (b) the aggregate amount of all Disqualified Capital Stock of such Person to the extent such amount would not be included in the determination of Adjusted Consolidated Net Worth; provided that Consolidated Total Indebtedness shall not include (i) any Shareholder Loans outstanding as of such date, (ii) any Debt evidenced by Trust Securities Notes outstanding as of such date, but only to the extent that the aggregate unpaid principal balance of such Trust Securities Notes on such date does not exceed an amount equal to 15% of Consolidated Total Capitalization on such date (for the sake of clarity, with any portion of Debt evidenced by Trust Securities Notes that exceeds an amount equal to 15% of Consolidated Total Capitalization on such date being included in Debt for the purposes of this definition) or (iii) any Subordinated Debt other than any Debt evidenced by Trust Securities Notes. Notwithstanding anything in this Agreement to the contrary, the term “Consolidated Total Indebtedness” shall not include Debt, obligations or other liabilities to the extent that it has been defeased (whether by covenant or legal defeasance), satisfied and discharged, redeemed, cash collateralized or otherwise held in escrow in connection with the offering or issuance of such indebtedness, obligations or other liabilities or otherwise in connection with any other transaction (including any acquisition) (or that would constitute Debt, obligations or liabilities prior to such defeasance, satisfaction and discharge, redemption, cash collateralization, or deposit into escrow) in accordance with the terms of the documents governing such indebtedness, obligations or other liabilities.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Credit Documents” means (a) this Agreement, (b) the Notes and (c) the Fee Letter.
“Credit Party” means the Administrative Agent or any Bank.
“Cure Period” has the meaning set forth in Section 6.02(a).
“Cure Right” has the meaning set forth in Section 6.02(a).
“Daily Simple SOFR” means, for any day (a “Daily Simple SOFR Rate Day”), a rate per annum equal to the greater of (a) SOFR for the day (such day, a “Daily Simple SOFR Determination Day”) that is five (5) U.S. Government Securities Business Days prior to (A) if such Daily Simple SOFR Rate Day is a U.S. Government Securities Business Day, such Daily Simple SOFR Rate Day or (B) if such Daily Simple SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such Daily Simple SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website; provided that if by 5:00 p.m. (New York City time) on the second (2nd) U.S. Government Securities Business Day immediately following any Daily Simple SOFR Determination Day, SOFR in respect of such Daily Simple SOFR Determination Day has not been published on the SOFR Administrator’s Website and a Benchmark Replacement Date with respect to Daily Simple SOFR has not occurred, then SOFR for such Daily Simple SOFR Determination Day will be SOFR as published in respect of the first preceding U.S. Government Securities Business Day for which such SOFR was published on the SOFR Administrator’s Website; provided further that SOFR as determined pursuant to this proviso shall be utilized for purposes of calculation of Daily Simple SOFR for no more than three (3) consecutive Daily Simple SOFR Rate Days, and (b) the Floor. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Company.
10
“Daily Simple SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Daily Simple SOFR Determination Day” has the meaning set forth in the definition of Daily Simple SOFR.
“Daily Simple SOFR Loan” means a Term Loan that bears interest at a rate based on Adjusted Daily Simple SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“Daily Simple SOFR Rate Day” has the meaning set forth in the definition of Daily Simple SOFR.
“Debt” of any Person means, at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments (with respect to the Company, including the Trust Securities Notes), (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee under capital leases, (e) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance or similar instrument, (f) all Debt of others secured by a Lien on any asset of such Person, whether or not such Debt is assumed by such Person; provided that the amount of any Debt under this clause (f) shall be equal to the lesser of (i) the amount secured by such Lien and (ii) the fair market value of the asset subject to such lien at such date of determination (as determined in good faith by the Company), (g) all Debt of others Guaranteed by such Person, and (h) all obligations of such Person in respect of Disqualified Capital Stock; provided that the definition of “Debt” does not include any obligations of such Person (i) under repurchase or reverse repurchase agreements to repurchase or resell (as applicable) securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or other property), (ii) to return collateral pledged in respect of or in connection with the loan of such securities, (iii) under reinsurance, coinsurance, modified coinsurance agreements or similar agreements and related trust agreements (including trust obligations or obligations to otherwise pledge collateral thereunder), (iv) Trust Securities and any obligations in respect thereof (other than Trust Securities Notes) and (v) arising under insurance products created or entered into in the ordinary course of business. It is acknowledged and agreed that annuities, guaranteed investment contracts, funding agreements and similar instruments and agreements shall not constitute “Debt”.
“Debt Ratings” means, as of any date of determination, the public rating as determined by Moody’s and/or S&P, as the case may be, of the Company’s Index Debt.
“Debt to Capitalization Ratio” means, as of any date of determination, the ratio of (a) Consolidated Total Indebtedness to (b) Consolidated Total Capitalization
“Default” means any condition or event which constitutes an Event of Default or which with the giving of notice or lapse of time or both would, unless cured or waived, become an Event of Default.
11
“Defaulting Bank” means any Bank that (a) has failed, within two (2) Business Days of the date required to be funded or paid, to (i) fund any portion of a Term Loan or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Bank notifies the Administrative Agent in writing that such failure is the result of such Bank’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Credit Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Bank’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement will not be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three (3) Business Days after request by the Administrative Agent or the Company, acting in good faith, to provide a certification in writing from an authorized officer of such Bank that it will comply with its obligations (and is financially able to meet such obligations) to fund any prospective Term Loan under this Agreement, provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon receipt by the Administrative Agent or the Company, as applicable, of such certification in form and substance satisfactory to the Administrative Agent or the Company, as applicable, or (d) has, or has a direct or indirect parent company that has, become the subject of (A) a Bankruptcy Event or (B) a Bail-In Action.
“Derivative Financial Products” of any Person means all obligations (including whether pursuant to any master agreement or any particular agreement or transaction) of such Person in respect of any rate swap transaction, basis swap, forward rate transaction, interest rate future, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency future, currency option or any other similar transaction (including any option with respect to any of the foregoing) or any combination thereof.
“Disqualified Capital Stock” means any Capital Stock that, by its terms (or by the terms of any security or other Capital Stock into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition (a) matures or is mandatorily redeemable (other than solely for Qualified Capital Stock), pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations that are accrued and payable and the termination of the Term Commitments), (b) is redeemable at the option of the holder thereof (other than solely for Qualified Capital Stock and other than as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to the prior repayment in full of the Term Loans and all other Obligations that are accrued and payable and the termination of the Term Commitments), in whole or in part, (c) provides for the scheduled payments of dividends in cash, or (d) is or becomes convertible into or exchangeable for Debt or any other Capital Stock that would constitute Disqualified Capital Stock, in each case, prior to the date that is ninety-one (91) days after the Latest Maturity Date at the time of issuance of such Capital Stock; provided that if such Capital Stock is issued pursuant to a plan for the benefit of future, present or former employees, directors, officers, managers or consultants (or their respective Affiliates or Immediate Family Members) of the Company or the Subsidiaries or by any such plan to such employees, such Capital Stock shall not constitute Disqualified Capital Stock solely because it may be required to be repurchased by the Company or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
12
“Disqualified Institution” means each of the (a) banks, financial institutions and other institutional lenders separately identified in writing by Parent or Merger Sub to the Administrative Agent prior to the Closing Date, (b) competitors of the Company, BAM or any of their respective subsidiaries that are in the same or similar line of business and (c) any Affiliates of the Persons or entities referred to in clause (a) or (b) above that is either (x) reasonably identifiable as an Affiliate of such Person on the basis of similarity of such Affiliate’s name or (y) identified in writing by the Company to the Administrative Agent from time to time and to the extent that such Affiliates are not bona fide debt funds or investment vehicles that are primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business; provided that no written notice delivered after the Closing Date with respect to the Term Loans shall apply retroactively to disqualify any Person that has acquired an assignment or participation interest in the commitments prior to the delivery of such notice. The Administrative Agent shall have the right, and the Company hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Institutions provided by the Company and any updates thereto from time to time on Intralinks, Syndtrak, ClearPar or other similar information transmission systems, including that portion of such systems that are designed for “public side” Banks and/or (B) provide such list to each Bank requesting the same.
“Dollars” and the sign “$” means lawful money in the United States of America.
“Early Termination” has the meaning set forth in the definition of “Material Unpaid Derivative Product Indebtedness”.
“EEA Financial Institution” means (a) any institution established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway.
“EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“Environmental Laws” means any and all federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, chemicals or industrial, toxic or hazardous substances or wastes or the clean-up or other remediation thereof.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“ERISA Group” means the Company and all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Company, are treated as a single employer under Section 414(b) or 414(c) of the Code.
13
“Erroneous Payment” has the meaning assigned to it in Section 7.05(a).
“Erroneous Payment Deficiency Assignment” has the meaning assigned to it in Section 7.05(d)(i).
“Erroneous Payment Impacted Class” has the meaning assigned to it in Section 7.05(d)(i).
“Erroneous Payment Return Deficiency” has the meaning assigned to it in Section 7.05(d)(i).
“Erroneous Payment Subrogation Rights” has the meaning assigned to it in Section 7.05(e).
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“Event of Default” has the meaning set forth in Section 6.01.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Excluded Taxes” means, in the case of each Bank and the Administrative Agent, (i) any Taxes imposed on its net income (however denominated), and franchise, branch profits or similar taxes imposed on it, by a jurisdiction under the laws of which such Bank or the Administrative Agent (as the case may be) is organized or in which its principal executive office is located or, in the case of each Bank, in which its Applicable Lending Office is located, (ii) any Taxes imposed on or measured by its overall net income (however denominated), or any similar Taxes imposed on it, by reason of any present or former connection between it and the jurisdiction (or any political subdivision thereof) imposing such Taxes, other than connections arising solely as a result of the Bank or the Administrative Agent (as the case may be) having executed, delivered, become a party to, performed its obligations under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned any interest in any Term Loan or Credit Document, (iii) in the case of each Bank, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Bank with respect to an applicable interest in a Term Loan or Term Commitment pursuant to a law in effect on the date on which such Bank acquires such interest in the Term Loan or Term Commitment (other than pursuant to an assignment request by the Company under Section 8.07) or such Bank changes its lending office, except in each case to the extent that, pursuant to Section 8.05, amounts with respect to such Taxes were payable either to such Bank’s assignor immediately before such Bank became a party hereto or to such Bank immediately before it changed its lending office, (iv) any Taxes attributable to such recipient’s failure to comply with Section 8.05(g) or Section 8.05(i) and (v) any withholding Taxes imposed by FATCA.
“Existing AEL Credit Agreement” means that Credit Agreement dated as of February 15, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date), among AEL, the lenders from time to time party thereto and Citizens Bank, N.A., as administrative agent.
“Existing ANG Credit Agreement” means that Term Loan Agreement dated as of May 25, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date), among American National Group, LLC (formerly known as American National Group, Inc.), the lenders from time to time party thereto and Bank of Montreal, as administrative agent.
14
“Existing Credit Agreements” means, collectively, the Existing ANG Credit Agreement and the Existing AEL Credit Agreement.
“Existing Parent Credit Agreement” means that Credit Agreement dated as of April 22, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the Closing Date), among Parent, BAM Re Holdings Ltd., the lenders from time to time party thereto and Bank of Montreal, as administrative agent.
“Facility” means the Term Commitments and the Term Loans made thereunder and any Incremental Facility.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“Federal Funds Rate” means, for any day, a rate per annum (expressed as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with the members of the NYFRB arranged by federal funds brokers on such day, as published by the NYFRB on the Business Day next succeeding such day; provided that (a) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, (b) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it and (c) if the Federal Funds Rate shall be less than the Floor, such rate shall be deemed to be the Floor.
“Fee Letter” means that certain Agency Fee Letter, dated as of April 5, 2024, between Merger Sub and the Administrative Agent, as amended and in effect from time to time.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer, assistant treasurer, or other senior financial officer of the Company, in each case, to the extent duly authorized to deliver certifications hereunder.
“Floor” means 0.00% per annum.
“Foreign Bank” means a Bank that is not a U.S. Person.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, administrative tribunal, central bank, self-regulatory organization or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
15
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person directly or indirectly guaranteeing any Debt of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt (whether arising by virtue of partnership arrangements, by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise) or (b) entered into for the purpose of assuring in any other manner the obligee of such Debt of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Immediate Family Members” means with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse, former spouse, qualified domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), the estates of such individual and such other individuals above and any trust, partnership or other bona fide estate-planning vehicle the only beneficiaries of which are any of the foregoing individuals or any private foundation or fund that is controlled by any of the foregoing individuals or any donor-advised fund of which any such individual is the donor.
“Impacted Interest Period” has the meaning set forth in Section 2.06(b).
“Incremental Assumption Agreement” means an Incremental Assumption Agreement substantially in the form of Exhibit I hereto, among the Company, the Administrative Agent and each Incremental Term Lender party thereto.
“Incremental Facilities” has the meaning set forth in Section 2.08(a).
“Incremental Term Facility” has the meaning set forth in Section 2.08(a).
“Incremental Term Increase” has the meaning set forth in Section 2.08(a).
“Incremental Term Lender” means a Bank with a Commitment under an Incremental Term Facility or an Incremental Term Increase or an outstanding Loan under an Incremental Term Facility or an Incremental Term Increase.
“Indemnified Taxes” means (a) any Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Company pursuant to this Agreement or any other Credit Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of the Company that is not guaranteed by any other Person or subject to any other credit enhancement.
“Insurance Subsidiary” means any Subsidiary which is (a) organized under the Laws of the United States, any state or territory thereof or the District of Columbia and (b) subject to the regulation of, and is required to file statements with, any governmental body, agency or official in any state or territory of the United States or the District of Columbia which regulates insurance companies or the doing of an insurance business therein.
16
“Interest Election Request” means a request by the Company to convert or continue a Borrowing in accordance with Section 2.02(b) substantially in the form of Exhibit F hereto.
“Interest Period” means, as to any Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability thereof), as specified in the applicable Notice of Borrowing or Interest Election Request; provided that (a) 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 immediately preceding Business Day, (b) 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, (c) no Interest Period shall extend beyond the Maturity Date, (d) no tenor that has been removed from this definition pursuant to Section 8.01(d) shall be available for specification in such Notice of Borrowing or Interest Election Request and (e) the initial Interest Period with respect to any Incremental Term Facility shall be as specified in the applicable Incremental Assumption Agreement. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
“Investment Entities” means entities where, as party to a joint venture, partnership, securitization transaction or other similar investment transactions, the Company or one of its Subsidiaries does not have complete control solely as a result of having a veto or consent right over certain material actions or decisions, including the incurrence of any indebtedness or obligations incurred by such entities
“IRS” means the United States Internal Revenue Service.
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
“Joint Bookrunners” means BMO Capital Markets Corp., Royal Bank of Canada, BNP Securities Corp., Canadian Imperial Bank of Commerce, New York Branch, HSBC Bank USA, National Association, Mizuho Bank, Ltd., The Toronto-Dominion Bank, New York Branch, U.S. Bank National Association, Wells Fargo Securities, LLC, Barclays Bank PLC, Citibank, N.A., Credit Agricole Corporate and Investment Bank and PNC Capital Markets LLC.
“Joint Lead Arrangers” means BMO Capital Markets Corp., Royal Bank of Canada, BNP Securities Corp., Canadian Imperial Bank of Commerce, New York Branch, HSBC Bank USA, National Association, Mizuho Bank, Ltd., The Toronto-Dominion Bank, New York Branch, U.S. Bank National Association, Wells Fargo Securities, LLC, Barclays Bank PLC, Citibank, N.A., Credit Agricole Corporate and Investment Bank and PNC Capital Markets LLC.
“Latest Maturity Date” means, at any date of determination and with respect to the specified Loans or Commitments (or in the absence of any such specification, all outstanding Loans and Commitments), the latest Maturity Date applicable to any such Loans or Commitments hereunder at such time.
17
“Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents, orders, decrees, injunctions or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“Lender-Related Person” has the meaning set forth in Section 9.03(c).
“Liabilities” means any losses, claims (including intraparty claims), demands, damages, penalties or liabilities of any kind.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For the purposes of this Agreement, the Company or any Subsidiary shall be deemed to own subject to a Lien any asset which it has acquired or beneficially holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
“Loan” means a Term Loan or a loan under any Incremental Facility.
“Margin Stock” has the meaning given to it in Regulations T, U and X.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, properties, operations or financial condition of the Company and its Consolidated Subsidiaries, taken as a whole, (b) the ability of the Company to perform its payment obligations under this Agreement or any other Credit Document or (c) the validity or enforceability of any of the Credit Documents or the material rights and remedies of the Banks under the Credit Documents.
“Material Subsidiary” means (a) any Subsidiary that has total assets (including Capital Stock of its Subsidiaries) in excess of 10% of the total assets of the Company and its Consolidated Subsidiaries (based upon and as of the date of the filing of the most recent consolidated balance sheet of the Company delivered pursuant to Section 5.01) and (b) any Subsidiary of the Company whose Subsidiaries include one or more Material Subsidiaries. In the event that the aggregate total assets of the Material Subsidiaries represents less than 80% of the consolidated total assets of the Company and its Consolidated Subsidiaries (as reported on the Company’s most recent consolidated balance sheet furnished pursuant to Section 4.04 or 5.01), the Company shall promptly designate by written notice to the Administrative Agent an additional Subsidiary or Subsidiaries as Material Subsidiaries in order that, after such designation, the aggregate total assets of the Material Subsidiaries represent at least 80% of the consolidated total assets of the Company and its Consolidated Subsidiaries (as reported on the Company’s most recent consolidated balance sheet furnished pursuant to Section 4.04 or 5.01).
“Material Unpaid Derivative Product Indebtedness” means, at any time, any obligations of the Company or any of its Material Subsidiaries then due and payable by the Company or any of its Material Subsidiaries in respect of one or more swap contracts (giving effect to any legally enforceable netting agreements) as a result of such swap contracts being terminated, accelerated or closed-out by the counter-party prior to the scheduled termination of such swap contracts (an “Early Termination”), where such Early Termination was the result of an event of default or other similar breach of such swap contracts attributable to the Company or any of its Material Subsidiaries.
“Maturity Date” means May 25, 2027.
18
“Merger Sub” has the meaning set forth in the recitals to this Agreement.
“Minimum Adjusted Consolidated Net Worth Amount” has the meaning set forth in Section 5.07(a).
“Moody’s” means Moody’s Investors Service, Inc., and any successor to its rating agency business.
“Multiemployer Plan” means at any time an employee pension benefit plan within the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, including for these purposes any Person which ceased to be a member of the ERISA Group during such five-year period.
“NAIC” means the National Association of Insurance Commissioners and any successor thereto.
“Non-Consenting Bank” means any Bank that does not approve any consent, waiver or amendment that (a) requires the approval of each Bank, each affected Bank, each directly and adversely affected Bank or all affected Banks in accordance with the terms of Section 9.05 and (b) has been approved by the Required Banks.
“Non-Operating Indebtedness” of any Person means, at any date, all Debt (other than Operating Indebtedness) of such Person.
“Non-Recourse Indebtedness” of any Person means, at any date, all Debt of such Person to the extent that:
(a) (i) such Person (A) provides no credit support of any kind for the payment of such Debt (including any undertaking, agreement or instrument that would constitute Debt) and (B) is not directly or indirectly liable, as a guarantor or otherwise, for such Debt; and (ii) no default with respect to such Debt would permit upon notice, lapse of time or both any holder of any other Debt (other than the Term Loans) of such Person to declare a default on such other Debt or cause the payment thereof to be accelerated or payable prior to its stated maturity;
(b) such Debt (i) relates solely to (A) such Person’s warehousing of loans for the issuance of commercial mortgage-backed securities or (B) such Person’s purchase or warehousing of real property, and (ii) is non-recourse as to all of the assets of such Person except for such securitized, warehoused, financed or purchased loans or real property securing such Debt; or
(c) such Debt is of a variable interest entity (as defined in FASB ASC 810) with respect to such Person and is recourse only to the credit or assets of such variable interest entity.
“Notes” means a promissory note or notes of the Company, substantially in the form of Exhibit C, evidencing the obligation of the Company to repay the Term Loans made to it hereunder, and “Note” means any one of such promissory notes issued hereunder.
“Notice of Borrowing” has the meaning set forth in Section 2.02(a).
19
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received to the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of the Company arising under any Credit Document or otherwise with respect to the Term Loans, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Company or any Affiliate thereof of any proceeding under any bankruptcy, insolvency or similar laws affecting creditors’ rights generally naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Operating Indebtedness” of any Person means, at any date, without duplication, any Debt of such Person (a) in respect of or supporting life and annuity reserve requirements (including any Guarantee of Debt in respect thereof), (b) incurred in connection with repurchase agreements and securities lending, (c) to the extent the proceeds of which are used directly or indirectly to support life and annuity reserve requirements (including for the purpose of funding portfolios that are used to fund trusts in order), (d) to the extent the proceeds of which are used to fund discrete customer-related assets or pools of assets (and related hedge instruments and capital) that are at least notionally segregated from other assets and have sufficient cash flow to pay principal and interest thereof, with insignificant risk of other assets of the Company and its Subsidiaries being called upon to make such principal and interest payments, (e) excluded entirely from the calculation of financial leverage by both S&P and Moody’s in their evaluation of such person, (f) consisting of loans and other obligations owing to Federal Home Loan Banks, (g) incurred in connection with redundant reserve reinsurance financings, (h) relating to guaranteed investment contracts, (i) incurred by a separated account maintained by an Insurance Subsidiary for which there is no recourse to the Company or any other Subsidiary, (j) in respect of any Surplus Note, (k) securitization Debt between the Company or any its Affiliates, on the one hand, and the Company or any of its other Affiliates, on the other hand, with respect to certain investments or (l) consisting of Non-Recourse Indebtedness.
“Other Taxes” means any present or future stamp or documentary Taxes and any other excise or property Taxes, or similar charges or levies, which arise from any payment made pursuant to this Agreement or any other Credit Document or from the execution, delivery, registration or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document, but excluding any such Taxes described in clause (ii) of the definition of Excluded Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 8.07).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of overnight federal funds borrowings by United Sates-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on its public website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate (from and after such date as the NYFRB shall commence to publish such composite rate).
20
“Ownership Interests” has the meaning set forth in Section 5.08.
“parent” means, with respect to any Bank, any Person as to which such Bank is, directly or indirectly, a subsidiary.
“Parent” means Brookfield Reinsurance Ltd., a Bermuda exempted company limited by shares.
“Participant” has the meaning set forth in Section 9.06(b).
“Participant Register” has the meaning set forth in Section 9.06(b).
“PATRIOT Act” has the meaning set forth in Section 4.10.
“Payment Account” means an account designated by the Administrative Agent in a notice to the Company and the Banks to which payments hereunder are to be made.
“Payment Recipient” has the meaning assigned to it in Section 7.05(a).
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
“Permitted Holder” means each of (a) Parent and (b) any of its Affiliates, funds, partnerships, alternative investment vehicles, managed accounts or other co-investment vehicles managed, advised or controlled by it or any of its Affiliates but not including, however, any portfolio company of any of the foregoing.
“Permitted Liens” means:
(a) Liens existing on the Closing Date and listed on Schedule II hereto and any modifications, replacements, renewals, refinancings or extensions thereof; provided that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof and (ii) the modification, replacement, renewal, refinancing or extension of the obligations secured or benefited by such Liens, to the extent constituting Debt, is not prohibited under this Agreement;
(b) Liens for Taxes that are not overdue for a period of more than thirty (30) days or not yet payable or subject to penalties for nonpayment or which are being contested in good faith and by appropriate proceedings for which adequate reserves with respect thereto are being maintained on the books of the Company in accordance with GAAP;
(c) statutory or common law Liens of landlords, sublandlords, carriers, warehousemen, mechanics, materialmen, repairmen, construction contractors or other like Liens that secure amounts not overdue for a period of more than forty five (45) days or if more than forty five (45) days overdue, that are unfiled and no other action has been taken to enforce such Lien or that are being contested in good faith and by appropriate actions diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person to the extent required in accordance with GAAP (as determined by the Company in good faith);
21
(d) (i) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation and (ii) pledges and deposits in the ordinary course of business securing liability for reimbursement or indemnification obligations of (including obligations in respect of letters of credit or bank guarantees for the benefit of) insurance carriers providing property, casualty or liability insurance or self-insurance to the Company or any of its Subsidiaries;
(e) Liens incurred or pledges or deposits made to secure the performance of bids, tenders, sales contracts, trade contracts and leases (other than Debt described in clause (a) of the definition thereof), statutory and other obligations required by law, surety, stay, customs and appeal bonds, performance bonds and other obligations of a like nature (including (i) those to secure health, safety and environmental obligations and (ii) letters of credit and bank guarantees required or requested by any Governmental Authority in connection with any contract or Law) incurred in the ordinary course of business;
(f) Liens securing judgments or orders for the payment of money that do not constitute an Event of Default under Section 6.01(j);
(g) easements, zoning restrictions, rights-of-way, encroachments, protrusions and similar encumbrances and other minor title defects affecting real property that do not in the aggregate materially interfere with the ordinary conduct of business of the Company or any Material Subsidiary;
(h) Liens solely on any cash earnest money deposits made by the Company or any Material Subsidiary in connection with any letter of intent or purchase agreement not prohibited hereunder;
(i) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;
(j) Liens (i) arising by operation of law under Article 4 of the Uniform Commercial Code in effect in New York in connection with the collection of items provided for therein and (ii) in favor of a banking or other financial institutions arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution (including rights of set-off) and which are within the general parameters customary in the banking industry or arising pursuant to such financial institution’s general terms and conditions;
(k) any assignment of an account or chattel paper (i) as part of the sale of the business out of which such account or chattel paper arose, (ii) for the purpose of collection only, (iii) under a contract to an assignee who is also obligated to perform under such contract or (iv) in whole or partial satisfaction of pre-existing Debt;
(l) leases, licenses, subleases or sublicenses granted to others which do not interfere in any material respect with the business of the Company and its Subsidiaries, taken as a whole;
(m) Liens (i) on cash advances or cash equivalents in favor of (x) the seller of any property to be acquired and to be applied against the purchase price for such investment or (y) the buyer of any property to be disposed of, or to secure obligations in respect of indemnification, termination fee or similar seller obligations and (ii) consisting of an agreement to dispose of any property, in each case, solely to the extent such investment or disposition, as the case may be, would have been permitted on the date of the creation of such Lien;
22
(n) any interest or title of a lessor, sublessor, licensor or sublicensor under leases, subleases, licenses or sublicenses entered into by the Company or any of its Subsidiaries in the ordinary course of business, or with respect to intellectual property that is not material to the conduct of the business or consistent with past practice of the Company and its Subsidiaries, taken as a whole;
(o) Liens deemed to exist in connection with investments in repurchase agreements;
(p) Liens that are contractual rights of set-off or rights of pledge (i) relating to the establishment of depository relations with banks not given in connection with the issuance of Debt or (ii) relating to pooled deposit or sweep accounts of the Company or any of its Subsidiaries to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any of its Subsidiaries;
(q) ground leases in respect of real property on which facilities owned or leased by the Company or any of its Subsidiaries are located;
(r) (i) zoning, building, entitlement and other land use regulations by Governmental Authorities with which the normal operation of the business complies, and (ii) any zoning or similar law or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property that does not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries, taken as a whole;
(s) Liens arising from precautionary Uniform Commercial Code financing statement or similar filings;
(t) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
(u) deposits of cash with the owner or lessor of premises leased and operated by the Company or any of its Subsidiaries in the ordinary course of business of the Company and such Subsidiary or consistent with past practice to secure the performance of the Company’s or such Subsidiary’s obligations under the terms of the lease for such premises;
(v) security given to a public utility or any municipality or Governmental Authority when required by such utility or authority in connection with the operations of that Person in the ordinary course of business or consistent with past practice;
(w) Liens on any funds or securities held in escrow accounts established for the purpose of holding proceeds from issuances of debt securities by the Company or any of its Subsidiaries issued after the Closing Date, together with any additional funds required in order to fund any mandatory redemption or sinking fund payment on such debt securities within 360 days of their issuance; provided that such Liens do not extend to any assets other than such proceeds and such additional funds;
23
(x) any encumbrance or restriction (including put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(y) Liens on investments and cash balances of any Insurance Subsidiary securing obligations of such Insurance Subsidiary in respect of trust or similar arrangements in the ordinary course of business for the benefit of policyholders or cedents to secure insurance or reinsurance recoverables owed to them by such Insurance Subsidiary;
(z) Liens arising under escrows, trusts, custodianships, separate accounts, funds withheld procedures or accounts, modified coinsurance procedures and accounts, and similar deposits, arrangements, or agreements established with respect to insurance policies, annuities, guaranteed investment contracts and similar products underwritten by, or reinsurance agreements entered into by, the Company, any Insurance Subsidiary, any Reinsurance Subsidiary, or any other Subsidiary;
(aa) Liens in favor of, and pledges, deposits, letters of credit and similar arrangements with, applicable insurance regulatory authorities in the ordinary course of business;
(bb) Liens on collateral consisting of cash and cash equivalents securing obligations under or in respect of any rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other security swap, option, exchange commodity or derivative transaction and/or any combination of such transactions, or captive financing arrangements in an aggregate amount at any time outstanding under this clause (bb) not to exceed the greater of (i) $400,000,000 and (ii) 5.0% of Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to the terms of this Agreement;
(cc) any interest or title of a lessor under any operating lease;
(dd) Liens securing Non-Operating Indebtedness of the Company and its Subsidiaries in an aggregate amount not to exceed 10% of the Company’s Adjusted Consolidated Net Worth at the time such Lien is created;
(ee) Liens arising under ERISA or the Code not constituting an Event of Default;
(ff) Liens on property, assets or Capital Stock of a Person at the time such Person is acquired by, merged with or into or consolidated, combined or amalgamated with the Company or any Subsidiary, and any modifications, replacements, renewals, refinancings or extensions thereof; provided that such Liens were not incurred in connection with, or in contemplation of, such acquisition, merger, consolidation, combination or amalgamation; provided, further, that (i) the Lien does not extend to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien and (B) proceeds and products thereof and (ii) the modification, replacement, renewal, refinancing or extension of the obligations secured or benefited by such Liens, to the extent constituting Debt, is not prohibited under this Agreement;
24
(gg) Liens for the purpose of securing the payment of all or a part of the purchase price of, or capital lease obligations, mortgage financings, purchase money Debt or other payments incurred to finance, assets or property (other than Capital Stock or other investments) acquired, constructed, improved or leased; provided that, in the case of this clause (gg): (i) the aggregate principal amount of Debt secured by such Liens does not exceed the cost of the assets or property so acquired, constructed, improved or leased, plus fees, expenses, discount, premiums, commissions and penalties of such Person incurred in connection therewith; and (ii) such Liens do not encumber any other assets or property of the Company or any Subsidiary other than such assets or property, assets affixed or appurtenant thereto, accessions and additions thereto, and products and proceeds thereof, and improvements, developments, repairs, renewals, and replacements of or to such property, and other than pursuant to customary cross-collateralization provisions with respect to other property of the Company or any Subsidiary that also secures Debt owed to the same financing party or its Affiliates;
(hh) Liens securing Debt or other obligations of a Material Subsidiary owing to the Company or any other Material Subsidiary;
(ii) leases, licenses, subleases and sublicenses of assets (including real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Company and its Subsidiaries taken as a whole;
(jj) Liens on Margin Stock;
(kk) Liens incurred in the ordinary course of business that do not secure Debt; and
(ll) Liens securing any Operating Indebtedness.
“Permitted Refinancing” means, with respect to any Debt, any modification, refinancing, refunding, renewal, replacement or extension of such Debt; provided that the principal amount (or accreted value, if applicable) thereof does not exceed the principal amount (or accreted value, if applicable) of the Debt so modified, refinanced, refunded, renewed, replaced or extended except by an amount equal to unpaid accrued interest and premium thereon plus other reasonable amounts paid, and fees and expenses reasonably incurred, in connection with such modification, refinancing, refunding, renewal, replacement or extension and by an amount equal to any existing commitments unutilized thereunder.
“Person” means an individual, a corporation, a partnership, an association, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Plan” means at any time an employee pension benefit plan (other than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained, or contributed to, by any member of the ERISA Group for employees of any member of the ERISA Group or (ii) has at any time within the preceding five years been maintained, or contributed to, by any Person which was at such time a member of the ERISA Group for employees of any Person which was at such time a member of the ERISA Group.
25
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Board of Governors of the Federal Reserve System of the United States (as determined by the Administrative Agent).
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Qualified Capital Stock” means Capital Stock that is not Disqualified Capital Stock.
“Quarterly Dates” means the last day of March, June, September and December in each year, the first of which shall be the first such day after the Closing Date.
“Register” has the meaning set forth in Section 2.04(b).
“Regulation S-X” means Regulation S-X promulgated under the Securities Act of 1933, as amended from time to time, and as interpreted by the SEC.
“Regulations T, U and X” means Regulations T, U and X, respectively, of the Board, in each case as in effect from time to time.
“Reinsurance Holding Companies” means any non-natural Person that does not hold a license to transact the business of insurance or reinsurance in any jurisdiction and that controls a Reinsurance OpCo. For purposes of this definition, “control” means the power to direct, or cause the direction, of the management or policies of a Person, whether through ownership of voting securities, by contract (other than a contract for the provision or non-management services), or otherwise.
“Reinsurance OpCo” means any non-natural Person that holds a license to transact the business of reinsurance and does not engage in the business of writing, issuing or delivering insurance policies on a direct basis.
“Reinsurance Subsidiaries” means, collectively, Subsidiaries that are Reinsurance Holding Companies or Reinsurance OpCos.
“Related Indemnitee” means, with respect to any Indemnitee, (a) any controlling person or controlled Affiliate of such Indemnitee, (b) the directors, officers, or employees of such Indemnitee or any of its controlling persons or controlled Affiliates and (c) the respective agents or representatives of such Indemnitee, in the case of this clause (c), acting on behalf of or at the instructions of such Indemnitee; provided that, each reference to a controlled Affiliate in this definition pertains to a controlled Affiliate involved in the negotiation or syndication of this Agreement.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.
“Relevant Governmental Body” means the Board or the NYFRB, or a committee officially endorsed or convened by the Board or the NYFRB, or any successor thereto.
26
“Reorganization” has the meaning set forth in the recitals to this Agreement.
“Required Banks” means, as of any date of determination, Banks holding more than 50% of all outstanding Term Loans at such time; provided that the portion of any Term Loans held by any Defaulting Bank shall be excluded for the purposes of making a determination of Required Banks.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” means the chief executive officer, president, vice president, chief administrative officer, Financial Officer, secretary or assistant secretary, controller or other officer of the Company.
“Restricted Payments” has the meaning set forth in Section 5.13.
“S&P” means S&P Global Ratings, a division of S&P Global, Inc., and any successor entity thereof.
“Sanctions” has the meaning set forth in Section 4.10.
“Sanctions Laws” has the meaning set forth in Section 4.10.
“SAP” means, with respect to any Insurance Subsidiary, the statutory accounting practices prescribed or permitted by the insurance commissioner (or other similar authority) from time to time in the jurisdiction of incorporation of such Insurance Subsidiary for the preparation of annual statements and other financial reports by insurance companies of the same type as such Insurance Subsidiary.
“SEC” means Securities and Exchange Commission or any governmental body, agency or official succeeding to its principal functions.
“Shareholder Loans” means any subordinated Debt of the Company to any of its direct or indirect equityholders and/or Affiliates; provided that, such Debt shall (i) be subject to subordination provisions reasonably acceptable to the Administrative Agent, (ii) mature at least six (6) months after the Maturity Date and (iii) have no required principal payments or mandatory prepayments prior to the maturity thereof.
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the NYFRB, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Borrowing” means, as to any Borrowing, the SOFR Loans comprising such Borrowing.
27
“SOFR Loan” means a Term SOFR Loan (or, if Daily Simple SOFR has replaced Term SOFR pursuant to Section 8.01 or 8.06, a Daily Simple SOFR Loan).
“Solvency Certificate” means a certificate substantially in the form attached hereto as Exhibit D.
“Specified Representations” means the representations and warranties set forth in Section 4.01(a), Section 4.02(a) and (b) (in each case solely as it relates to the entering into and performance by the Company of its obligations under each Credit Document), Section 4.02(d)(y), Section 4.03, Section 4.07, Section 4.09 and the last sentence of Section 4.10.
“Specified Transactions” means one or more divestitures, reorganizations or separations that are effected by the Company, to the extent that the Company has provided prior written notice thereof to the Administrative Agent prior to the consummation thereof.
“Statutory Statement” means a statement of the condition and affairs of an Insurance Subsidiary, prepared in accordance with accounting procedures and practices prescribed or permitted by an applicable insurance regulatory authority or the NAIC, as modified in accordance with permitted practices approved by an applicable insurance regulatory authority, and filed with an applicable insurance regulatory authority or the NAIC.
“Subsidiary” means any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by the Company, but excluding the Investment Entities.
“Subordinated Debt” means any Debt of the Company (whether outstanding on the Closing Date or thereafter incurred) that is subordinated or junior in right of payment to the Term Loans, and does not mature or is not mandatorily redeemable or subject to any mandatory repurchase requirement at any time on or prior to the Maturity Date, in each case, pursuant to the terms of such debt. No Debt of the Company shall be deemed to be subordinated or junior in right of payment to any other Debt of the Company solely by virtue of Liens, guaranties, maturity or structural subordination.
“Surplus Note” means a promissory note executed by an Insurance Subsidiary of the type generally described in the insurance industry as a “surplus note” (as determined by the Company in good faith), the principal amount of which an insurance regulator permits the issuer to record as an addition to the statutory capital and surplus of such Insurance Subsidiary, determined in accordance with SAP.
“Taxes” means any and all present or future taxes, duties, levies, imposts, deductions, withholdings (including backup withholdings), assessments, fees or other charges of any nature, imposed by a Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Tax Sharing Agreements” means any tax sharing or similar agreements with customary or arm’s-length terms and (if not on arm’s-length terms) reasonably acceptable to the Administrative Agent entered into between any of the Company, its Subsidiaries or any direct or indirect parent of the Company, in each case, as may be amended, supplemented, waived or otherwise modified from time to time in a manner (if not on arm’s-length terms) reasonably acceptable to the Administrative Agent.
28
“Term Commitment” means, with respect to any Bank, its obligation to make Term Loans pursuant to Section 2.01(b) in an aggregate principal amount not to exceed the amount set forth opposite such Bank’s name as its “Term Commitment” on Schedule I hereto or in the Assignment and Assumption pursuant to which such Bank shall have assumed its Term Commitment. The initial aggregate amount of the Term Commitments as of the Closing Date is $1,750,000,000. Unless the context shall otherwise require, after the effectiveness of any Incremental Term Facility, the term “Term Loan Commitment” shall include the commitments under such Incremental Term Facility.
“Term Loans” means the term loans made by each Bank to the Company pursuant to Section 2.01(b) (or, if context so requires, the aggregate amount of such term loans made by all of the Banks). Unless the context shall otherwise require, the term “Term Loans” shall include any loans made under Incremental Term Facility.
“Term SOFR” means, for the applicable tenor, the Term SOFR Reference Rate on the day (such day, the “Term SOFR Determination Day”) that is two (2) U.S. Government Securities Business Days prior to the first day of such applicable Interest Period, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m., New York City time, on any Term SOFR Determination Day the Term SOFR Reference Rate for the applicable tenor has not been published by the Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Reference Rate has not occurred, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Term SOFR Determination Day, provided that if Term SOFR determined as provided above shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.
“Term SOFR Adjustment” means a percentage equal to 0.10% per annum.
“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).
“Term SOFR Loan” means a Term Loan that bears interest at a rate based on Adjusted Term SOFR, other than pursuant to clause (c) of the definition of “Base Rate”.
“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.
“Transactions” means, collectively, (i) the consummation of the AEL Merger, the Reorganization and the Closing Date Refinancing, (ii) the execution and delivery of this Agreement and the other Credit Documents to be entered into on the Closing Date and the borrowing by the Company of the Term Loans hereunder and (iii) the payment of all fees and expenses related to the foregoing.
“Trust Securities” means, at any time, trust preferred securities, pre-capitalized securities, deferrable interest subordinated debt securities, mandatory convertible debt or other hybrid securities issued by one or more business trusts that are Affiliates of the Company (including Closing Date Trust Preferred Securities), to which trusts the Company has issued Trust Securities Notes.
29
“Trust Securities Notes” means (a) the unsecured notes issued by the Company to evidence loans made to the Company by the issuers of the Trust Securities from the proceeds of the sale of such Trust Securities under and pursuant to any of the Closing Date Trust Preferred Securities (as the same may be amended, restated, supplemented, refinanced, replaced, extended or otherwise modified from time to time) and (b) any subsequent unsecured notes issued by the Company to evidence loans made to the Company by the issuers of Trust Securities (as the same may be amended, restated, supplemented, refinanced, replaced, extended or otherwise modified from time to time).
“Type”, when used in reference to any Borrowing, refers to whether the Borrowing is of a Base Rate Term Loan or a SOFR Loan.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“Weighted Average Life to Maturity” means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Debt.
“Withholding Agent” means the Company or the Administrative Agent.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
30
Section 1.02 Other Definitions and Provisions. With reference to this Agreement and each other Credit Document, unless otherwise specified herein or in such other Credit Document: (a) the definitions of terms herein shall apply equally to the singular and plural forms of the terms defined, (b) whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms, (c) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”, (d) the word “will” shall be construed to have the same meaning and effect as the word “shall”, (e) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (f) 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, (g) 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, (h) 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, (i) the term “documents” includes any and all instruments, documents, agreements, certificates, notices, reports, financial statements and other writings, however evidenced, whether in physical or electronic form and (j) in the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including”.
Section 1.03 Accounting Terms and Determinations. (a) All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP (or, to the extent such terms apply solely to any Insurance Subsidiary, or if otherwise expressly required, SAP), as in effect from time to time, applied in a manner consistent with that used in preparing the audited financial statements or statutory statements, as of the Closing Date, except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP or SAP would affect the computation of any requirement set forth in any Credit Document, and either the Company or the Required Banks shall so request, the Administrative Agent, the Banks and the Company shall negotiate in good faith to amend such requirement to preserve the original intent thereof in light of such change in GAAP or SAP (subject to the approval of the Required Banks); provided that, until so amended, (i) such requirement shall continue to be computed in accordance with GAAP or SAP, as applicable, as in effect prior to such change therein and (ii) the Company shall provide to the Administrative Agent and the Banks financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such requirement made before and after giving effect to such change in GAAP or SAP, as applicable.
(c) Notwithstanding anything to the contrary contained in this Agreement, all obligations of any Person that are or would have been treated as operating leases (including any network lease or any operating indefeasible right of use) for purposes of GAAP prior to the issuance by the Financial Accounting Standards Board on February 25, 2016 of an Accounting Standards Update (the “ASU”) shall continue to be (or shall be) accounted for as operating leases for purposes of all financial definitions and calculations for purpose of this Agreement (whether or not such operating lease obligations were in effect on such date) notwithstanding the fact that such obligations are required in accordance with the ASU (on a prospective or retroactive basis or otherwise) to be treated as obligations in respect of capital leases in the financial statements to be delivered pursuant to Section 5.01.
31
Section 1.04 Rounding. Any financial ratios required to be maintained pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio or percentage is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).
Section 1.05 References to Agreement and Laws. Unless otherwise expressly provided herein, (a) any definition or reference to formation documents, governing documents, agreements (including the Credit Documents) and other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications are not prohibited by any Credit Document and (b) any definition or reference to any applicable Laws, including Anti-Corruption Laws, Anti-Money Laundering Laws, the Code, ERISA, the Exchange Act, the PATRIOT Act, the Securities Act, shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such applicable Laws and any reference to any applicable Laws shall, unless otherwise specified, refer to such applicable Laws as amended, modified or supplemented from time to time.
Section 1.06 Times of Day. Unless otherwise specified, all references herein to times of day shall be references to Eastern time (daylight or standard, as applicable). Unless otherwise specified, to the extent any obligation is required to be paid or performed hereunder on a date that is not a Business Day, the date for payment or performance shall be construed to be required on the immediately succeeding Business Day.
Section 1.07 Classification of Term Loans and Borrowings. For purposes of this Agreement, Term Loans and Borrowings may be classified and referred to by Type (e.g., a “SOFR Loan” or “SOFR Term Borrowing”).
Section 1.08 Divisions. For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws), (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized on the first date of its existence by the holders of its Capital Stock at such time.
Section 1.09 Compliance with this Agreement. In the event that any Debt, Liens, Restricted Payment, merger, dissolution, liquidation, consolidation, amalgamation or affiliate transaction, or any other transaction (or any portion of any of the foregoing) meets the criteria of one or more than one of the categories of transactions then permitted pursuant to any clause (or multiple clauses) of Section 5.08, 5.09, 5.11, 5.12 or 5.13, respectively, (or any clause or multiple clauses of any definition referenced in such Sections), then the Company, in its sole discretion, may classify or reclassify (or later divide, classify or reclassify) such transaction (or any portion thereof) and shall only be required to include the amount and type of such transaction in one of such clauses. Notwithstanding anything in this Agreement or any other Credit Document to the contrary, any transaction consummated under Section 5.08, 5.09, 5.11, 5.12 or 5.13 in reliance on a provision or basket that is based on the Debt to Capitalization Ratio or Adjusted Consolidated Net Worth shall be calculated based on the Debt to Capitalization Ratio or Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to the terms of Section 5.01(a) or 5.01(b) on or prior to the date of such transaction, and any subsequent change in Debt to Capitalization Ratio or Adjusted Consolidated Net Worth shall not cause the Company or such transaction to be in violation of such provision or basket.
32
ARTICLE II
THE CREDITS
Section 2.01 Loans. Each Bank severally agrees, subject to the terms and conditions set forth in this Agreement, to make a Term Loan in a single installment in Dollars to the Company on the Closing Date, in an aggregate principal amount not to exceed such Bank’s Term Commitment. Once prepaid or repaid, the Term Loans under this Agreement may not be reborrowed. After giving effect to the initial Borrowing on the Closing Date, the Term Commitments shall automatically and permanently terminate.
Section 2.02 Notice of Borrowings; Interest Elections. (a) With respect to each borrowing of Term Loans, the Company shall give the Administrative Agent notice in substantially the form of Exhibit E hereto (a “Notice of Borrowing”) not later than 11:00 a.m., Toronto time, on (x) the date of each Base Rate Borrowing by the Company and (y) the third (3rd) U.S. Government Securities Business Day before each SOFR Borrowing (or, if Daily Simple SOFR has replaced Term SOFR pursuant to Section 8.01 or 8.06, the fifth (5th) U.S. Government Securities Business Day before each SOFR Borrowing) by the Company (or such shorter time as may be agreed to by the Administrative Agent with respect to any Borrowing on the Closing Date), specifying:
(i) the date of such Borrowing, which shall be a Business Day,
(ii) the aggregate amount (in Dollars) of such Borrowing,
(iii) whether the Term Loans comprising such Borrowing are to be Base Rate Term Loans or SOFR Loans, and
(iv) in the case of a SOFR Borrowing, (x) the duration of the initial Interest Period applicable thereto, subject to the provisions of the definition of Interest Period and (y) whether the Company is electing to automatically continue such initial Interest Period upon the termination thereof (an “Automatic Continuation Election”).
(b) Interest Elections. Each Borrowing initially shall be of the Type specified in the applicable Notice of Borrowing and, in the case of a SOFR Borrowing, shall have an initial Interest Period as specified in such Notice of Borrowing. Thereafter, the Company may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a SOFR Borrowing, may elect Interest Periods therefor, all as provided in this subsection (b). 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 Banks holding the Term Loans comprising such Borrowing, and the Term Loans comprising each such portion shall be considered a separate Borrowing. To make an election pursuant to this Section 2.02(b), the Company shall notify the Administrative Agent of such election in writing pursuant to an Interest Election Request by the time that a Notice of Borrowing would be required under Section 2.02(a) 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 Interest Election Request shall specify the following information in compliance with this Section 2.02:
33
(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) below 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 a Base Rate Borrowing or a SOFR Borrowing; and
(iv) if the resulting Borrowing is a Term SOFR Borrowing, (x) the Interest Period to be applicable thereto after giving effect to such election, which shall be a period contemplated by the definition of the term “Interest Period” and (y) whether the Company is making an Automatic Continuation Election.
If any such Interest Election Request requests a Term SOFR Borrowing but does not specify an Interest Period, then the Company shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Bank of the details thereof and of such Bank’s portion of each resulting Borrowing. If the Company fails to deliver a timely Interest Election Request with respect to a Term SOFR Borrowing prior to the date that is three (3) U.S. Government Securities Business Days before the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, (x) if the Company has made an Automatic Continuation Election with respect to such Borrowing, at the end of such Interest Period such Borrowing shall be continued as a Term SOFR Borrowing with an Interest Period of equal duration to the Interest Period then ending and (y) if the Company has not made an Automatic Continuation Election with respect to such Borrowing, at the end of such Interest Period such Borrowing shall be converted to a Base Rate 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 Banks, 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 SOFR Borrowing and (ii) unless repaid, each SOFR Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period applicable thereto. Notwithstanding the foregoing, there shall not be more than 6 Interest Periods in effect, it being understood that such amount may be increased in connection with any Incremental Facility as provided in the applicable Incremental Assumption Agreement or as otherwise agreed between the Company and the Administrative Agent.
Section 2.03 Funding of Term Loans
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall promptly notify each Bank of the contents thereof and of such Bank’s share of such Borrowing and such Notice of Borrowing shall not thereafter be revocable by the Company.
(b) Not later than 11:00 a.m, Toronto time (or 1:00 p.m., Toronto time, in the case of any Base Rate Borrowing), on the date of each Borrowing, each Bank participating therein shall make available its share of such Borrowing, in Federal or other funds immediately available in New York City or Toronto, to the Administrative Agent at its address specified in or pursuant to Section 9.01. Unless the Administrative Agent determines that any applicable condition specified in Article III has not been satisfied, the Administrative Agent will make the funds so received from such Banks available to the Company at any account of the Company specified in writing to the Administrative Agent by the Company that is reasonably acceptable to the Administrative Agent.
34
(c) Unless the Administrative Agent shall have received notice from a Bank prior to the time of any Borrowing that such Bank will not make available to the Administrative Agent such Bank’s share of such Borrowing, the Administrative Agent may assume that such Bank has made such share available to the Administrative Agent on the date of such Borrowing in accordance with Section 2.03(b) and the Administrative Agent may, in reliance upon such assumption, make available to the Company on such date a corresponding amount. If and to the extent that such Bank shall not have so made such share available to the Administrative Agent, such Bank and the Company severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Company until the date such amount is repaid to the Administrative Agent, at (i) in the case of the Company, a rate per annum equal to the higher of the Federal Funds Rate and the interest rate applicable thereto pursuant to Section 2.06 and (ii) in the case of such Bank, the higher of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Bank shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Bank’s Term Loan included in such Borrowing for purposes of this Agreement.
Section 2.04 Evidence of Term Loans
(a) Each Bank shall maintain in accordance with its usual practice records evidencing the indebtedness of the Company to such Bank resulting from each Term Loan made by such Bank, including the amounts of principal and interest payable and paid to such Bank from time to time hereunder, and setting forth the Term Commitments of such Bank.
(b) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Company, shall maintain, at an office located within the United States, a copy of each Assignment and Assumption delivered to it, in accordance with its customary practices, and a register for the recordation of the names and addresses of the Banks and the Term Commitments of, and principal amounts (and stated interest) of the Term Loans owing to, each Bank from time to time (the “Register”). The entries in the Register shall be conclusive absent clear error, and the Company, the Administrative Agent and the Banks shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this Agreement. The Register shall be available for inspection by the Company and any Bank (as to its own entries) at any reasonable time and from time to time upon reasonable prior notice. No assignment shall be effective for purpose of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(c) The failure of any Bank or the Administrative Agent to maintain such records required by this Section 2.04 or any error therein shall not in any manner affect the obligations of the Company to repay the Term Loans in accordance with the terms of this Agreement.
(d) Any Bank may request that the Term Loans of such Bank to the Company be evidenced by a single Note, in substantially the form of Exhibit C hereto with appropriate modifications to reflect the fact that it evidences the Term Loans of the relevant Type, payable by the Company to such Bank for the account of its Applicable Lending Office. In such event, the Company shall prepare, execute and deliver to such Bank a Note payable to such Bank (or, if requested by such Bank, to such Bank and its registered assigns). Thereafter, once recorded in and to the extent consistent with the information contained in the Register, the Term Loans evidenced by such Note and interest thereon shall at all times (including after assignment pursuant to Section 9.06) be represented by one or more Notes in such form payable to the payee named therein (or, to such payee and its registered assigns). In the case of any Term Loans evidenced by a Note pursuant to this clause (d), any transfer of a Note must be recorded in the Register in order to be effective.
35
Section 2.05 Maturity of Term Loans. Each Term Loan shall mature, and the Company hereby unconditionally promises to pay the unpaid principal of each Term Loan (together with accrued interest thereon and all other amounts then payable under this Agreement) on the Maturity Date.
Section 2.06 Interest Rates of Term Loans
(a) Each Base Rate Term Loan shall bear interest on the outstanding principal amount thereof, for each day from the date such Base Rate Term Loan is made until it becomes due, at a rate per annum equal to the sum of the Base Rate for such day plus the Applicable Margin. Such interest shall accrue and be payable quarterly in arrears on each Quarterly Date and on the Maturity Date (and, if later, the date the Term Loans shall be paid in full).
(b) (i) Each Term SOFR Loan shall bear interest on the outstanding principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to the sum of the applicable Adjusted Term SOFR plus the Applicable Margin. Such interest shall be payable for each Interest Period on the last day thereof and, if such Interest Period is longer than three months, at intervals of three months after the first day thereof and, in the event of any conversion of any Term SOFR Loan prior to the end of the current Interest Period therefor, accrued interest on such Term SOFR Loan shall be payable on the effective date of such conversion.
(ii) Each Daily Simple SOFR Loan shall bear interest on the outstanding principal amount thereof at a rate per annum equal to the sum of the applicable Adjusted Daily Simple SOFR plus the Applicable Margin. Such interest shall be payable on the last Business Day of each March, June, September and December.
(c) The Administrative Agent shall determine each interest rate applicable to the Term Loans and other amounts hereunder. The Administrative Agent shall give prompt notice to the Company and the Banks of each interest rate so determined, and its determination thereof shall be conclusive in the absence of manifest error.
(d) Notwithstanding the rates of interest specified in clauses (a) and (b) above or elsewhere in any Credit Document, effective immediately upon the occurrence of any Event of Default under Sections 6.01(a)(i), 6.01(g) or 6.01(h), and for as long as such Event of Default shall be continuing, all overdue amounts owing by the Company hereunder shall bear interest at a rate that is (i) with respect to the Term Loans, 2.00% per annum in excess of the interest rate otherwise applicable to the Term Loans from time to time and (ii) with respect to any other Obligations, the Base Rate plus the Applicable Margin applicable to Base Rate Loans plus 2.00% per annum, in each case, payable on demand.
36
Section 2.07 Fees
(a) The Company agrees to pay all fees owing to the Administrative Agent pursuant to the Fee Letter in accordance with the terms set forth therein.
(b) All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, as applicable, to the Banks entitled thereto. Fees paid hereunder shall not be refundable under any circumstances.
Section 2.08 Incremental Commitments.
(a) The Company may, from time to time, by written notice to the Administrative Agent, request (i) one or more additional Classes of Term Loans (each, an “Incremental Term Facility”) or (ii) one or more additional Term Loans of the same Class of any existing Class of Term Loans (each, an “Incremental Term Increase” and together with any Incremental Term Facility, the “Incremental Facilities”), from one or more Banks (in the sole discretion of such Banks), or Approved Funds, or any other financial institution (other than Disqualified Institutions), in an amount such that, on a pro forma basis, the Debt to Capitalization Ratio is not greater than 0.35:1.00; provided that at the time of the incurrence of such Incremental Facilities and immediately after giving effect thereto and to the use of proceeds thereto (assuming the full utilization thereof), no Default or Event of Default shall have occurred and be continuing or would result therefrom; provided, further, that each such Person, if not already a Bank hereunder, shall be subject to the approval of the Administrative Agent (not to be unreasonably withheld, conditioned or delayed). Such notice shall set forth (A) the amount of the Incremental Term Facility or Incremental Term Increase, as applicable, (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000), (B) the date on which such Incremental Term Facility or Incremental Term Increase, as applicable, is requested to become effective (which shall not be less than 10 Business Days nor more than 60 calendar days after the date of such notice, unless otherwise agreed to by the Administrative Agent) and (iii) in the case of an Incremental Term Facility or an Incremental Term Increase, whether such Incremental Term Facility or Incremental Term Increase are to be Term Commitments or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). All Incremental Term Facilities and Incremental Term Increases shall be made in Dollars unless otherwise agreed by the Company, the Administrative Agent, and the lenders providing such Incremental Term Facilities or Incremental Term Increase. For the avoidance of doubt, Incremental Term Facilities and Incremental Term Increases may be provided on a delayed draw basis.
(b) In connection with any Incremental Facility, the Company and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence such Incremental Facility. Subject to clause (c) below, each Incremental Assumption Agreement in respect of an Incremental Term Facility or an Incremental Term Increase shall specify the terms of such Incremental Term Facility or Incremental Term Increase to be made thereunder. The Administrative Agent shall promptly notify each Bank as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Assumption Agreement, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Facility evidenced thereby. Any such amendment shall be memorialized in writing by the Administrative Agent with the Company’s consent (in each case, not to be unreasonably withheld or delayed) and furnished to the other parties hereto.
(c) The terms of each Incremental Facility shall be reasonably satisfactory to the Administrative Agent and in any event:
37
(i) shall be unsecured and shall rank pari passu in right of payment with the existing Term Loans;
(ii) shall not mature earlier than the Latest Maturity Date of the Term Loans outstanding at the time of incurrence of such Incremental Term Facility or Incremental Term Increase, as applicable;
(iii) shall have a Weighted Average Life to Maturity not shorter than the remaining Weighted Average Life to Maturity of then existing Term Loans;
(iv) subject to clauses (ii) and (iii) above, may have amortization determined by the Company and the applicable Incremental Term Lenders;
(v) shall have an Applicable Margin determined by the Company and the applicable Incremental Term Lenders;
(vi) may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of existing Term Loans hereunder, as specified in the applicable Incremental Assumption Agreement; and
(vii) there shall be no obligor in respect of any Incremental Facility other than the Company, as borrower.
(d) No Incremental Term Facility or Incremental Term Increase shall become effective under this Section 2.08 unless, on the date of such effectiveness, (i) the conditions set forth in paragraphs (a) and (b) of Section 3.02 shall be satisfied as if it was a borrowing date and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Company; and (ii) the Administrative Agent shall have received closing certificates, if requested by the Administrative Agent, opinions of counsel, and other customary documentation requested by the Administrative Agent.
(e) Each of the parties hereto hereby agrees that the Administrative Agent may take any and all action as may be reasonably necessary to ensure that all Incremental Term Facilities or Incremental Term Increases (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished at the discretion of the Administrative Agent by requiring each outstanding SOFR Borrowing of the relevant Class to be converted into a Base Rate Borrowing of such Class on the date of each Incremental Term Facility, Incremental Term Increase, or by allocating a portion of each Incremental Term Facility or Incremental Term Increase to each outstanding SOFR Term Borrowing of the same Class on a pro rata basis, even though as a result thereof such Incremental Term Facility or Incremental Term Increase may effectively have a shorter Interest Period than the Term Loans included in the Borrowing of which they are a part (and notwithstanding any other provision of this Agreement that would prohibit such an initial Interest Period). In addition, to the extent any Incremental Term Facility or Incremental Term Increase are not Other Term Loans, any scheduled amortization payments required to be made after the making of such Incremental Term Facility or Incremental Term Increase may be adjusted to the extent required under the applicable Incremental Assumption Agreement, to give effect to any amortization applicable to such Incremental Term Facility.
38
(f) This Section 2.08 shall supersede any provisions in Section 2.10 or Section 9.05 to the contrary.
Section 2.09 Optional Prepayments.
(a) The Company may, upon notice to the Administrative Agent in substantially the form of Exhibit G hereto by 11:00 a.m., Toronto time, on the date of prepayment, without premium or penalty, prepay any Base Rate Borrowing of any Class made to the Company at any time and from time to time, in whole or in part in amount aggregating $5,000,000 or any larger multiple of $1,000,000 (or such other amount that represents the total amount of Base Rate Borrowings outstanding), by paying the principal amount to be prepaid together with accrued interest thereon to the date of prepayment.
(b) The Company may, upon notice to the Administrative Agent in substantially the form of Exhibit G hereto by 11:00 a.m., Toronto time, at least three (3) U.S. Government Securities Business Days (or, if Daily Simple SOFR has replaced Term SOFR pursuant to Section 8.01 or 8.06, five (5) U.S. Government Securities Business Days) prior to the date of prepayment, without premium or penalty (but including any amounts owed pursuant to Section 2.11), prepay any SOFR Borrowing of any Class made to the Company at any time and from time to time, in whole or in part in amounts aggregating $5,000,000 or any larger multiple of $5,000,000 (or such other amount that represents the total amount of SOFR Borrowings outstanding), by paying the principal amount to be prepaid together with (x) accrued interest thereon to the date of prepayment and (y) all losses and expenses (if any) relating thereto which are (i) determined pursuant to Section 2.11 and (ii) notified to the Company in writing by the relevant Bank at least one (1) Business Day prior to the date of such prepayment; provided that the failure of any Bank to so notify the Company of the amount of any such loss or expense shall not relieve the Company of its obligation to pay the same.
(c) Each prepayment pursuant to this Section 2.09 shall be applied to prepay ratably the Term Loans of the several Banks included in the relevant Class of Borrowings being prepaid.
Upon receipt of a notice of prepayment pursuant to this Section 2.09, the Administrative Agent shall promptly notify each Bank of the relevant Class of the contents thereof and of such Bank’s ratable share (if any) of such prepayment and such notice shall not thereafter be revocable by the Company; provided that any such notice may be conditioned upon the occurrence of one or more events (including the effectiveness of new credit facilities) and may be revoked by the Company upon the nonoccurrence of such event by written notice to the Administrative Agent prior to the date specified for such prepayment.
Section 2.10 Payments Generally; Pro Rata Treatment
(a) The Company shall make or cause to be made each payment required to be made by it hereunder (whether principal of or interest on the Term Loans, fees, amounts under Article VIII or otherwise) or under any other Credit Document (except to the extent otherwise provided therein) not later than 2:00 p.m., Toronto 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 Payment Account, except as otherwise expressly provided in the relevant Credit Document. 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 (as applicable), the date for payment shall be extended to the next succeeding Business Day (as applicable) and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder or under any other Credit Document shall be made in Dollars.
39
(b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal of or interest on the Term Loans and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder in respect of the Term Loans, pro rata among the Banks in accordance with the amounts of interest and fees then due to the Banks, and (ii) second, to pay such principal in respect of the Term Loans then due hereunder, pro rata among the Banks in accordance with the amounts of principal of the Term Loans then due to the Banks.
(c) Except to the extent otherwise provided herein (including in Section 2.10(e)) or as provided in the applicable Incremental Assumption Agreement in respect of any Other Term Loans: (i) each payment of principal in respect of the Loans of any Class shall be for account of the Banks (other than Defaulting Banks), pro rata in accordance with the amounts of principal of the Loans of such Class then due and payable to the Banks (other than Defaulting Banks); and (ii) each payment of interest shall be for account of the Banks of any Class (other than Defaulting Banks), pro rata in accordance with the amounts of interest then due and payable to the Banks of such Class (other than Defaulting Banks).
(d) 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 Banks hereunder that the Company will not make such payment, the Administrative Agent may assume that the Company made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Banks the amount due. In such event, if the Company has not in fact made such payment, then each of the Banks severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Bank 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 higher of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules for interbank compensation.
(e) If any Bank shall fail to make any payment required to be made by it pursuant to Section 2.10(d) or 7.07 or shall otherwise be a Defaulting Bank, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Bank for the benefit of the Administrative Agent to satisfy such Bank’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Bank under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
Section 2.11 Funding Losses. If the Company makes any payment of principal with respect to any Term SOFR Loan (pursuant to Article VI or VIII or otherwise), or converts any Term SOFR Loan, on any day other than the last day of the Interest Period applicable thereto, or if the Company fails to borrow, convert, continue or prepay any Term SOFR Loans after notice has been given to any Bank in accordance with Section 2.02(a), 2.02(b) or 2.09(b), as applicable, the Company shall reimburse each Bank within thirty (30) days after demand for any resulting loss or expense incurred by it (or by an existing or prospective participant in the related Term Loan), including any loss incurred in obtaining, liquidating or employing deposits from third parties, but excluding loss of margin for the period after any such payment or failure to borrow, provided that such Bank shall have delivered to the Company a certificate as to the amount of such loss or expense, which certificate shall be conclusive in the absence of manifest error.
40
Section 2.12 Computation of Interest and Fees. Interest based on the Base Rate (other than clause (c) of the definition thereof) shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and paid for the actual number of days elapsed (including the first day but excluding the last day). All other interest and fees shall be computed on the basis of a year of 360 days and paid for the actual number of days elapsed (including the first day but excluding the last day).
Section 2.13 Defaulting Banks. Notwithstanding any provision of this Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) the Term Commitment and the outstanding principal amount of Term Loans held by such Defaulting Bank shall not be included in determining whether the Required Banks or the Required Banks have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.05); provided that this clause (a) shall not apply to the vote of a Defaulting Bank in the case of an amendment, waiver or other modification requiring the consent of such Bank or each Bank affected thereby;
(b) the Administrative Agent may, in its discretion, apply or hold payments for the account of such Defaulting Bank as set forth in Section 2.10(e); and
(c) the Company may, upon notice to such Defaulting Bank and the Administrative Agent, require such Defaulting Bank, at the expense of such Defaulting Bank, to assign, without recourse (in accordance with and subject to the restrictions contained in Section 9.06), all its interests, rights and obligations under this Agreement by such Defaulting Bank to any Person that shall assume such obligations (which Assignee may be another Bank, if it accepts such assignment) with (and subject to) the consent of the Administrative Agent (which consent shall not unreasonably be withheld); provided that such Defaulting Bank shall have received payment of an amount equal to the principal of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such Term Loans and accrued interest and fees) or the Company (in the case of all other amounts) (provided that the Company may deduct, or cause such assignee to deduct, from amounts payable by them or it, as applicable, to such Bank hereunder all fees, costs and expenses reasonably incurred by the Company in effecting such assignment).
41
ARTICLE III
CONDITIONS
Section 3.01 Closing Date. The effectiveness of this Agreement and the obligation of each Bank to make the Term Loans on the Closing Date are subject to the satisfaction (or waiver in accordance with Section 9.05) of the following conditions:
(a) (i) the AEL Merger shall have been, or shall concurrently or substantially contemporaneously with the funding of the Term Loans be, consummated in accordance with the AEL Acquisition Agreement in all material respects (as may be amended, supplemented or otherwise modified in compliance with subclause (ii) below) and (ii) the AEL Acquisition Agreement shall not have been amended or modified, and no condition shall have been waived or consent granted, in each case by Parent or Merger Sub or at Parent’s or Merger Sub’s request, in any respect that is materially adverse to the Banks without the prior written consent of the Banks holding more than 50% of the commitments in respect of the Term Facility (such consent not to be unreasonably withheld, conditioned or delayed); provided that (a) the Banks shall be deemed to have consented to such change unless they shall object thereto within five (5) Business Days (as defined in the AEL Acquisition Agreement as in effect on July 4, 2023) after written receipt of such change, (b) any changes to the definition of “Company Material Adverse Effect” (as defined in the AEL Acquisition Agreement) will be deemed to be materially adverse to the Banks, (c) any (x) change in the purchase price consideration not exceeding 10% in the aggregate purchase price consideration to be paid under the AEL Acquisition Agreement; provided that any such decrease in purchase price is allocated to reduce the Term Loans funded hereunder ratably based on the percentage that the Term Loans to be used to fund the AEL Merger bear to the aggregate purchase price consideration (cash or non-cash) to be paid under the AEL Acquisition Agreement and (y) increase in the aggregate purchase price consideration to be paid under the AEL Acquisition Agreement which is funded with equity contributions from Parent shall, in each case, be deemed not to be materially adverse to the interests of the Banks and will not require the prior written consent of the Banks and (d) any fluctuation in per share value of the stock consideration component of the merger consideration or any increase or decrease in the aggregate merger consideration effected in accordance with the exchange ratio adjustments or other adjustments to the merger consideration set forth in the AEL Acquisition Agreement as in effect on July 4, 2023 will be deemed not to be materially adverse to the interests of the Banks and will not require the prior written consent of the Banks;
(b) the Reorganization shall have been, or shall concurrently or substantially contemporaneously with the funding of the Term Loans be, consummated;
(c) the Closing Date Refinancing shall have been, or shall concurrently or substantially contemporaneously with the funding of the Term Loans be, consummated;
(d) since the date of the AEL Acquisition Agreement, no Company Material Adverse Effect (as defined in the AEL Acquisition Agreement) shall have occurred;
(e) the Acquisition Agreement Representations shall be true and correct in all material respects (solely to the extent the accuracy of such representations is a condition to Merger Sub’s obligation to consummate the Merger under the AEL Acquisition Agreement) and the Specified Representations shall be true and correct in all material respects;
(f) receipt by the Administrative Agent of (i) GAAP audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of AEL for the two (2) most recent fiscal years ended at least seventy-five (75) days prior to the Closing Date and (ii) GAAP unaudited consolidated and (to the extent available) consolidating balance sheets and related statements of income, stockholders’ equity and cash flows of AEL as of and for each subsequent fiscal quarter ended at least forty (40) days before the Closing Date; provided that, the Administrative Agent shall be deemed to have received the applicable financial statements referred to in clauses (i) and (ii) if AEL has filed such financial statements with the SEC or if such financial statements are otherwise publicly available;
42
(g) receipt by the Administrative Agent of the following:
(i) a counterpart of this Agreement signed by AEL;
(ii) an opinion of (A) Cravath, Swaine & Moore LLP, as special counsel to the Company, and (B) Faegre Drinker Biddle & Reath LLP, as Iowa counsel to the Company, in each case, in form and substance reasonably satisfactory to the Administrative Agent;
(iii) a certificate, dated the Closing Date and signed by a Responsible Officer of AEL, certifying as to the matters set forth in Sections 3.01(a), (b), (c) and (e);
(iv) a Solvency Certificate signed by a Financial Officer of AEL;
(v) a certificate of a Responsible Officer of AEL, dated as of the Closing Date, certifying as to (A) the organizational documents of AEL, (B) the resolutions of the governing body of AEL authorizing (x) the execution, delivery and performance of the Credit Documents to which it is a party and (y) the borrowings contemplated hereunder, (C) the good standing certificate of AEL and (D) the incumbency and signatures of the Responsible Officers of AEL signing any Credit Document; and
(vi) a Notice of Borrowing as required by Section 2.02(a);
(h) receipt by the Administrative Agent (for the benefit of it and any applicable Bank), at least three (3) Business Days prior to the Closing Date, of (i) all documentation and other information required by regulatory authorities under applicable “know your customer” rules and regulations and Anti-Money Laundering Laws, including the PATRIOT Act and the Beneficial Ownership Regulation, and (ii) to the extent the Company qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Company, in the case of each of clauses (i) and (ii), that has been reasonably requested by the Administrative Agent (on behalf of itself or any Bank) in writing no later than ten (10) Business Days prior to the Closing Date; and
(i) receipt by the Administrative Agent and the Banks of all fees and invoiced expenses required to be paid by the Company or Merger Sub under Section 2.07(a) or any commitment or fee letters entered into by Merger Sub on or prior to the Closing Date, to the extent, in the case of expenses, such amounts are invoiced and such invoices received by the Company at least three (3) Business Days prior to the Closing Date.
The Administrative Agent shall promptly notify the Company and the Banks of the Closing Date, and such notice shall be conclusive and binding on all parties hereto.
Section 3.02 Each Credit Event After the Closing Date. The obligation of each Bank to make a Loan on the occasion of any Borrowing (other than a continuation or conversion of a Loan) after the Closing Date is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Company set forth in this Agreement shall be true and correct in all material respects (unless already qualified by materiality or “material adverse effect”, in which case they shall be certified as being true and correct in all respects) on and as of the date of such Borrowing, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties shall have been true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date).
43
(b) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(c) The delivery of a Notice of Borrowing to the Administrative Agent in accordance with Section 2.02(a).
(d) Each Borrowing (other than a conversion or continuation 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 paragraphs (a) and (b) of this Section.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
On the dates and to the extent required pursuant to Section 3.01 or 3.02, as applicable, the Company represents and warrants that:
Section 4.01 Corporate Existence and Power. The Company (a) is a corporation duly incorporated and validly existing under the laws of the State of Iowa, (b) has (i) all corporate power and authority and (ii) all material governmental licenses, authorizations, consents and approvals required, in each case, to own or lease its assets and carry on its business as now conducted and (c) is duly qualified and is licensed and, as applicable, in good standing under the laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license, except in each case referred to in the foregoing clauses (b)(ii) and (c) to the extent that such failure to do so would not reasonably be expected to have a Material Adverse Effect.
Section 4.02 Corporate and Governmental Authorization; Non-Contravention. The execution, delivery and performance by the Company of this Agreement and the other Credit Documents to which it is a party (a) are within the Company’s corporate powers, (b) have been duly authorized by all necessary corporate action, (c) require no action by or in respect of, or filing with, any governmental body, agency or official (except such as have been completed or made and are in full force and effect) and (d) do not contravene, or constitute a default under, any provision of (x) applicable law or regulation, (y) the articles of incorporation or by-laws of the Company or (z) any material agreement, judgment, injunction, order, decree or other instrument binding upon the Company or any Material Subsidiary or result in the creation or imposition of any Lien on any asset of the Company or any Material Subsidiary, except in each case referred to in the foregoing clauses (x) and (z) to the extent such contravention or default, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
Section 4.03 Binding Effect. This Agreement has been, and each other Credit Document to which the Company is a party, when delivered hereunder, will have been, duly executed and delivered by the Company. This Agreement and the other Credit Documents to which it is a party constitute the legal, valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general principles of equity.
44
Section 4.04 Financial Information. The audited consolidated balance sheets of AEL and its subsidiaries for the fiscal year ended December 31, 2023, and the related consolidated statements of income, stockholders’ equity and cash flows for such fiscal year (including the notes thereto) (i) were prepared in accordance with GAAP, except as otherwise expressly noted therein, and (ii) fairly represent, in all material respects, the financial condition of AEL and its subsidiaries on a consolidated basis as of the date hereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein.
Section 4.05 Litigation. Except as publicly disclosed by the Company, there is no action, suit or proceeding pending, or to the knowledge of the Company threatened, against the Company or any of its Material Subsidiaries before any court or arbitrator or any governmental body, agency or official which (a) has or would be reasonably expected to have a Material Adverse Effect or (b) purports to affect the validity or enforceability of this Agreement or any other Credit Document.
Section 4.06 Compliance with ERISA. Except as would not reasonably be expected to result in a Material Adverse Effect, each member of the ERISA Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and is in compliance in all material respects with the presently applicable provisions of ERISA and the Code with respect to each Plan. Except as would not reasonably be expected to result in a Material Adverse Effect, no member of the ERISA Group has (i) sought a waiver of the minimum funding standard under Section 412 of the Code in respect of any Plan, (ii) failed to make any required contribution or payment to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement, or made any amendment to any Plan or Benefit Arrangement, which has resulted or could result in the imposition of a Lien or the posting of a bond or other security under ERISA or the Code (other than a bond or other security required in connection with the creation and adoption of a pension plan for the Company) or (iii) incurred any liability under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.
Section 4.07 Not an Investment Company. None of the Company or the Material Subsidiaries is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended.
Section 4.08 Full Disclosure. None of the reports, financial statements, certificates or other written information furnished by or on the behalf of the Company to the Administrative Agent or any Bank in connection with the negotiation of this Agreement and the other Credit Documents or delivered hereunder or thereunder (as modified or supplemented by other information so furnished), taken together as a whole and when furnished, contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected or pro forma financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time furnished (it being understood that such projections and forecasts are subject to significant uncertainties and contingencies (many of which are beyond the control of the Company), no assurances can be given that such projections or forecasts will be realized and actual results may differ from such projections and such differences may be material). As of the Closing Date, the information included in any Beneficial Ownership Certification delivered on or prior to the Closing Date, as applicable, is true and correct in all respects.
45
Section 4.09 Margin Regulations. The Company is not engaged, principally, or as one of its important activities, in the business of purchasing or carrying Margin Stock, or extending credit for the purpose of purchasing or carrying Margin Stock, and no proceeds of any Borrowings will be used for any purpose that violates Regulation T, U or X of the Board of Governors of the United States Federal Reserve System.
Section 4.10 Sanctioned Persons; Anti-Corruption Laws; PATRIOT Act. None of the Company or any of its Subsidiaries or, to the knowledge of the Company, any of their respective directors, officers, employees or agents is (a) the target of any sanctions or economic embargoes administered or enforced by the U.S. Department of State, the Office of Foreign Assets Control of the U.S. Department of Treasury, the United Nations Security Council, the European Union or His Majesty’s Treasury of the United Kingdom, in each case, to the extent applicable (collectively, “Sanctions”, and the associated laws, rules, regulations and orders, collectively, “Sanctions Laws”) or (b) organized or resident in a country or territory that is the subject of Sanctions. Each of the Company and its Subsidiaries and, to the knowledge of the Company, each of their directors and officers, employees and agents is in compliance, in all material respects, with (i) all Sanctions Laws, (ii) the United States Foreign Corrupt Practices Act of 1977, as amended, and any other applicable anti-bribery or anti-corruption laws, rules, regulations and orders (collectively, “Anti-Corruption Laws”) and (iii) applicable provisions of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001) the “PATRIOT Act”) and any other applicable similar terrorism and money laundering laws, rules, regulations and orders (collectively, “Anti-Money Laundering Laws”), except in each case to the extent that such noncompliance therewith would not reasonably be expected to result in a Material Adverse Effect or reasonably be expected to result in the Administrative Agent, any Bank, any Joint Lead Arranger, any Joint Bookrunner or any Participant violating any such Sanctions Laws, Anti-Corruption Laws or Anti-Money Laundering Laws. No part of the proceeds of the Term Loans will be used by the Company, directly or knowingly indirectly, (A) for the purpose of funding, financing or facilitating any activities or business of or with, or making any payments to, any Person or in any country or territory that, at the time of such funding, financing or facilitating, is the target of Sanctions Laws in violation of applicable Sanctions Laws or (B) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law. The Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance with applicable Sanctions Laws, Anti-Corruption Laws and Anti-Money Laundering Laws in all material respects.
Section 4.11 Compliance with Laws. The Company and each Material Subsidiary is in compliance with all applicable Laws with respect to it or its properties, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
ARTICLE V
COVENANTS
Until the principal of and interest on the Term Loans and all fees payable hereunder shall have been paid in full, the Company agrees that:
Section 5.01 Information. The Company will deliver to the Administrative Agent (for prompt further distribution to each Bank):
46
(a) no later than one hundred twenty (120) days (or, in the case of the first fiscal year ending after the Closing Date, one hundred fifty (150) days) after the end of the applicable fiscal year of the Company (beginning with the fiscal year ending December 31, 2024), the consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of each fiscal year and the related consolidated statements of income, comprehensive income, equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP by Deloitte & Touche LLP or other independent public accounting firm of nationally recognized standing; provided that if the SEC has granted generally to non-accelerated filers an extension of any annual financial statement reporting deadline, and such extended deadline would be later than the applicable deadline described in this Section 5.01(a), then such extended deadline shall apply for purposes of this Section 5.01(a) with respect to the applicable period;
(b) sixty (60) days (or, in the case of the first three fiscal quarters ending after the Closing Date, seventy-five (75) days) after the end of each of the first three (3) fiscal quarters of each fiscal year of the Company, the consolidated balance sheet of the Company and its Consolidated Subsidiaries as of the end of each of the first three fiscal quarters of each fiscal year (commencing with the fiscal quarter ending June 30, 2024) and the related consolidated statements of income, comprehensive income, equity and cash flows for such quarter and for the portion of the Company’s fiscal year ended at the end of such quarter, setting forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the Company’s previous fiscal year, all certified (subject to normal year-end adjustments and the absence of footnotes) as to fairness of presentation and being prepared in accordance with GAAP by a Financial Officer of the Company; provided that if the SEC has granted generally to non-accelerated filers an extension of any quarterly financial statement reporting deadline, and such extended deadline would be later than the applicable deadline described in this Section 5.01(b), then such extended deadline shall apply for purposes of this Section 5.01(b) with respect to the applicable period;
(c) within five (5) Business Days after the delivery of each set of financial statements referred to in clauses (a) and (b) above, a duly completed Compliance Certificate signed by a Financial Officer of the Company;
(d) within five (5) Business Days of any Financial Officer of the Company learning of the occurrence of any Default, a certificate of a Financial Officer of the Company setting forth the details thereof and the action which the Company is taking or proposes to take with respect thereto;
(e) promptly following a request therefor, any documentation or other information required by bank regulatory authorities under applicable “know your customer” rules and regulations, the PATRIOT Act and the Beneficial Ownership Regulation, as from time to time reasonably requested by the Administrative Agent or any Bank;
(f) promptly after the same are available, copies of each annual report, proxy or financial statement of the Company filed by the Company with the SEC and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant hereto;
(g) within ten (10) days after the required date for filing with the NAIC or such insurance regulatory authority (after giving effect to any extensions granted by the NAIC or such insurance regulatory authority), a copy of a duly completed and signed annual Statutory Statement (or any successor form thereto) required to be filed by each Insurance Subsidiary that is a Material Subsidiary with the NAIC or an insurance regulatory authority which regulates insurance companies in the jurisdiction in which such Insurance Subsidiary is domiciled, in the form submitted to the NAIC or such insurance regulatory authority;
47
(h) within ten (10) days after the required date for filing with the NAIC or such insurance regulatory authority (after giving effect to any extensions granted by the NAIC or such insurance regulatory authority), a copy of a duly completed and signed quarterly Statutory Statement (or any successor form thereto) required to be filed by each Insurance Subsidiary that is a Material Subsidiary with the NAIC or an insurance regulatory authority which regulates insurance companies in the jurisdiction in which such Insurance Subsidiary is domiciled, in the form submitted to the NAIC or such insurance regulatory authority (it being understood and agreed that the Company shall have no obligation to deliver quarterly Statutory Statements if the filing of quarterly Statutory Statements is not required by the NAIC or the applicable insurance regulatory authority); and
(i) promptly after any Financial Officer obtaining knowledge of Moody’s or S&P’s announcement of a change in the applicable Debt Rating, written notice of such change.
Documents required to be delivered pursuant to Section 5.01(a), (b) or (f) may be delivered electronically on the following Internet websites: (a) the Company’s website at an address to be designated in writing to the Administrative Agent, (b) with respect to Section 5.01(a), (b) or (f) the SEC’s website at www.sec.gov (to the extent that any such documents are included in materials otherwise filed with the SEC) or (c) such other third party website that shall have been identified by the Company in a notice to the Administrative Agent and that is accessible by the Banks without charge, and in each case if so delivered shall be deemed to have been delivered on the date such materials became publicly available; provided that (i) the Company shall deliver electronic copies of such information to any Bank promptly upon the request of such Bank through the Administrative Agent and (ii) the Company shall have notified the Administrative Agent of the posting of such documents delivered pursuant to Section 5.01(a), (b) or (f). The Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request by a Bank for delivery, and each Bank shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Section 5.02 Payment of Tax Obligations. The Company will pay, discharge or otherwise satisfy, and will cause each Material Subsidiary to pay, discharge or otherwise satisfy, all its Tax obligations and liabilities, except where (a) the same may be contested in good faith by appropriate proceedings, (b) the Company or such Material Subsidiary has set aside, in accordance with generally accepted accounting principles, appropriate reserves for the accrual of any of the same and (c) the failure to make payment pending such contest would not reasonably be expected to result in a Material Adverse Effect.
Section 5.03 Conduct of Business and Maintenance of Existence. The Company will continue, and will cause each Material Subsidiary to continue, to engage in the business of insurance and/or investment management or businesses incidental, related or complementary thereto and will preserve, renew and keep in full force and effect, and will cause each Material Subsidiary to preserve, renew and keep in full force and effect (a) their respective legal existence and (b) their respective rights, privileges, licenses and franchises, other than (i) in the case of the foregoing clause (a), with respect to the merger, consolidation, liquidation or dissolution of any Material Subsidiary, and (ii) in the case of the foregoing clause (b), the loss of which would not reasonably be expected to result in a Material Adverse Effect; provided that, in the case of clauses (a) and (b), the Company may merge or consolidate with another Person in accordance with the terms of Section 5.09 and, for the avoidance of doubt, the Company shall be permitted to consummate the AEL Merger and the Reorganization and transactions related thereto.
48
Section 5.04 Maintenance of Property; Insurance. (a) The Company will keep, and will cause each Material Subsidiary to keep, all property useful and necessary in its business in good working order and condition, except, in each case, to the extent that failure to do so would not be reasonably expected to result in a Material Adverse Effect.
(b) The Company will maintain, and will cause each Material Subsidiary to maintain (either in the name of the Company or in such Subsidiary’s own name) with financially sound and responsible insurance companies (which may include any captive insurance company that is an Affiliate of the Company), insurance or self-insurance on all their respective properties and against at least such risks, in each case as is consistent with sound business practice for companies in substantially the same industry as the Company and its Material Subsidiaries; and the Company will furnish to the Banks, upon request from the Administrative Agent, information presented in reasonable detail as to the insurance so carried.
Section 5.05 Compliance with Laws. The Company will comply, and will cause each Subsidiary to comply, in all material respects, with all applicable laws, ordinances, rules, regulations and requirements of governmental bodies, agencies and officials (including, without limitation, Sanctions Laws, Anti-Corruption Laws, Anti-Money Laundering Laws, Environmental Laws and ERISA and the rules and regulations thereunder) except (i) where the necessity of compliance therewith is contested in good faith by appropriate proceedings or (ii) where such noncompliance therewith would not (A) reasonably be expected to result in a Material Adverse Effect and (B) in the case of the laws, rules, regulations and orders referred to in Section 4.10, reasonably be expected to result in a violation of such laws, rules, regulations or orders by the Administrative Agent or any Bank or Joint Lead Arranger.
Section 5.06 Inspection of Property, Books and Records. The Company will keep, and will cause each Material Subsidiary to keep, proper books of record and account in which entries that are full, true and correct in all material respects shall be made of all material dealings and transactions in relation to its business and activities; and, subject in all cases to Section 9.11, will permit, and will cause each Material Subsidiary to permit, representatives of the Administrative Agent to visit and inspect any of their respective properties, to examine and make abstracts from any of their respective books and records and to discuss their respective affairs, finances and accounts with their respective officers, employees, actuaries and independent public accountants, all upon reasonable notice, at such reasonable times during ordinary business hours; provided that such inspections shall be limited to once per fiscal year of the Company, unless an Event of Default shall have occurred and be continuing, in which case such inspection rights may be exercised as often as the Banks desire and at the expense of the Company; provided, further, that neither the Company nor any of its Subsidiaries shall be required to disclose any (i) trade secrets of the Company or its Subsidiaries, (ii) information subject to attorney-client privilege to the extent disclosure thereof would impair such privilege or (iii) information subject to confidentiality obligations to third parties the disclosure of which would cause the Company or any of its Subsidiaries to be in breach of such obligations.
Section 5.07 Financial Covenants. (a) Minimum Adjusted Consolidated Net Worth. Commencing with the first full fiscal quarter ending immediately after the Closing Date, the Company will not permit the Adjusted Consolidated Net Worth, calculated as of the last day of each fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), to be less than 60% of the Adjusted Consolidated Net Worth as of the Closing Date (the “Minimum Adjusted Consolidated Net Worth Amount”); provided that, following the consummation of any Specified Transaction, the Minimum Adjusted Consolidated Net Worth Amount shall be reduced by the aggregate amount of the Adjusted Consolidated Net Worth attributable to the assets or business subject to such Specified Transaction, as reflected in the most recent financial statements delivered pursuant to Section 5.01(a) or 5.01(b), as the case may be, and certified by a Financial Officer of the Company in the Compliance Certificate delivered in respect of each applicable fiscal quarter.
49
(b) Debt to Capitalization Ratio. Commencing with the first full fiscal quarter ending immediately after the Closing Date, the Company will not permit the Debt to Capitalization Ratio, calculated as of the last day of each fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b), to exceed 0.35:1.00.
Section 5.08 Negative Pledge. The Company will not, and will not permit any Material Subsidiary to, create or suffer to exist any Lien (other than Liens securing Debt not prohibited under Section 5.12) upon (a) any present or future Capital Stock or any other Ownership Interests (as defined below) of any of its Material Subsidiaries (other than any Subsidiary established primarily for the purpose of reinsuring liabilities associated with the level premium term business, the universal life business with secondary guarantees or variable annuities of the Company or any Insurance Subsidiary), except, solely with respect to this clause (a), Liens described in clauses (a), (x), (dd) or (ll) of the definition of “Permitted Liens” or (b) any other property or assets of the Company or any Material Subsidiary (other than any Insurance Subsidiary), except, solely in the case of this clause (b), any Permitted Liens. As used herein “Ownership Interests” means, with respect to any Person, all of the shares of Capital Stock of such Person and all debt securities of such Person that can be converted or exchanged for Capital Stock of such Person, whether voting or nonvoting, and whether or not such Capital Stock or debt securities are outstanding on any date of determination.
Section 5.09 Consolidations, Mergers and Sales of Assets. The Company will not (a) consolidate or merge with or into any other Person or (b) sell, lease or otherwise transfer, directly or indirectly, all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any other Person; provided that the Company may merge or consolidate with another Person if (i) the Company is the corporation surviving such merger or consolidation (or the corporation surviving the merger or consolidation is (x) organized under the laws of the United States, any state thereof or the District of Columbia and (y) assumes the obligations of the Company under this Agreement pursuant to documentation reasonably acceptable to Administrative Agent), (ii) immediately after giving effect to such merger or consolidation, no Default shall have occurred and be continuing, (iii) such surviving entity shall have provided the Administrative Agent and the Banks all reasonably requested documentation and other information required by regulatory authorities under applicable “know your customer” rules and regulations and Anti-Money Laundering Laws and (iv) the Administrative Agent shall have received an opinion of counsel reasonably satisfactory to the Administrative Agent; provided that the AEL Merger and the Reorganization shall be permitted in any event.
Section 5.10 Use of Proceeds. The proceeds of the Term Loans will be used on the Closing Date to (a) fund, in part, the Transactions, (b) fund a dividend or distribution to the direct or indirect parent company of AEL in an amount of up to $250,000,000 which, to the extent made, shall be applied to partially prepay (or to refund amounts used to prepay) indebtedness outstanding under the Existing Parent Credit Agreement and (c) pay fees and expenses relating to the foregoing, and/or, in each case, to repay in full any short-term indebtedness incurred by Merger Sub and/or American National Group, LLC to fund the foregoing.
50
Section 5.11 Transactions with Affiliates. The Company will not, and will not permit any of its Subsidiaries to, sell, lease or otherwise transfer any property or assets to, or purchase, lease or otherwise acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates involving aggregate payments or consideration in excess of $10,000,000, unless such transaction is (a) on terms and conditions not less favorable to the Company or such Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties (considering such transactions and all other related transactions as a whole), (b) approved by a majority of the disinterested members of the board of directors of the Company, (c) between or among the Company and its Subsidiaries or (d) set forth on Schedule III hereto. Notwithstanding the foregoing, the Company and its Subsidiaries may do the following: (i) pay customary fees and indemnifications to directors of Company and its Subsidiaries; (ii) enter into, and may make payments under, employment agreements, employee benefits plans, stock option plans, indemnification provisions and other similar compensatory arrangements with officers, employees and directors of the Company and its Subsidiaries in the ordinary course of business; (iii) enter into or make payments under leases or subleases of property in the ordinary course of business not materially interfering with the business of the Company and the Subsidiaries taken as a whole; (iv) enter into any transaction with an Affiliate where the only consideration paid consists of Qualified Capital Stock of the Company; (v) enter into any Shareholder Loan; (vi) consummate any transaction permitted by Section 5.13; (vii) if the Company is a member of a consolidated group for U.S. federal income tax purposes, make distributions to enable any direct and indirect parent company that is the parent of such consolidated group to pay any income taxes imposed on such direct or indirect parent with respect to the income of the Company; provided that such distributions shall not exceed the income taxes that the Company would have paid as a stand-alone taxpayer, (viii) the Company and its Subsidiaries may enter into and take any action required or permitted under, and make any payment in respect of (A) shared services arrangements so long as such payments and transactions are in exchange for services actually provided to the Company or its Subsidiaries, (B) cost sharing, cooperation, research and development, or similar arrangements, in each case on customary terms, and (C) the Tax Sharing Agreements and (ix) payments, repurchases and transactions with any trust, special purpose entity or similar entity in connection with any trust securities, pre-capitalized trust securities or other similar arrangements, or any Debt issued in respect of any of the foregoing, including any issuance of, or payments, repurchases or transactions involving or related to, any Trust Securities or Trust Securities Notes; provided that notwithstanding the foregoing, for the avoidance of doubt, the Company shall be permitted to consummate the AEL Merger and the Reorganization.
Section 5.12 Certain Debt. The Company will not at any time permit any Subsidiary to create, assume or incur Non-Operating Indebtedness, except for:
(a) Debt existing, or pursuant to commitments existing, on the Closing Date (provided that, if any such Debt individually is in an aggregate outstanding principal amount (or committed amount) in excess of $5,000,000, such Debt shall be described on Schedule IV hereto), and any Permitted Refinancing thereof;
(b) Debt of any Subsidiary of the Company owing to the Company or another Subsidiary of the Company;
(c) capital lease obligations of any Subsidiary of the Company;
51
(d) Debt incurred to finance the acquisition, construction or improvement of assets by any Subsidiary; provided that (i) such Debt is created at the time of, or within one hundred eighty (180) days after, such acquisition, construction or improvement is completed, and (ii) such Debt does not exceed the cost of such assets at the time of such acquisition, construction or improvement;
(e) to the extent they constitute Debt, obligations incurred in connection with any transaction (including an agreement with respect thereto) now existing or hereafter entered into which is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other security swap, option, exchange commodity or derivative transaction and/or any combination of these transactions, in each case entered into in the ordinary course of business for the purpose of asset or liability management;
(f) Acquired Debt and any Permitted Refinancing thereof;
(g) Debt incurred in the ordinary course of business in connection with workers’ compensation claims, self-insurance obligations, unemployment insurance or other forms of governmental insurance or benefits and pursuant to letters of credit or other security arrangements entered into in connection with such insurance or benefit;
(h) Debt representing installment insurance premiums owing in the ordinary course of business in respect of the liability insurance, casualty insurance or business interruption insurance maintained by the Company or any Subsidiary, in each case in respect of their properties and assets (but excluding any insurance or reinsurance provided or obtained by the Company or any Subsidiary in connection with performing its insurance business or managing risk in respect thereof);
(i) Subordinated Debt and, to the extent constituting Debt, Trust Securities;
(j) Debt arising under agreements to maintain a specified net worth, net worth generally, capital, or solvency of any Subsidiary (including any Insurance Subsidiary or Reinsurance Subsidiary), as required or approved by one or more applicable insurance regulatory authorities;
(k) (A) Debt arising from the honoring by a bank or other financial institution of a check, draft or similar instrument, and (B) Debt arising in connection with endorsement of instruments for deposit in the ordinary course of business;
(l) (A) Debt in respect of letters of credit in an amount at any time outstanding under this clause (A) not to exceed 5% of Adjusted Consolidated Net Worth for the most recently ended fiscal quarter for which financial statements have been delivered pursuant to the terms of this Agreement, and (B) Debt in respect of letters of credit issued for the account of one or more Reinsurance Subsidiaries and its Subsidiaries;
(m) Debt consisting of promissory notes issued by the Company or any of its Subsidiaries to existing or former employees, management or directors of or consultants to the Company or any Subsidiary or their assigns, estates or heirs to purchase, repurchase, redeem or otherwise acquire, cancel, retire or make payment in respect of Capital Stock, or options, warrants, equity appreciation rights or other rights to purchase or acquire Capital Stock, of the Company in an aggregate principal amount which, if paid in cash, would not otherwise be prohibited under this Agreement;
52
(n) Debt the aggregate principal amount of which is deposited into escrow or otherwise maintained in a deposit account or securities account solely for the purpose of being applied in full to defease, satisfy and discharge, redeem or cash collateralize other Debt (or that would constitute Debt prior to such defeasance, satisfaction and discharge, redemption or cash collateralization); and
(o) without duplication of the items described in clauses (a) through (q) above, other Non-Operating Indebtedness of any Subsidiary of the Company in an aggregate amount not to exceed 10% of the Company’s Adjusted Consolidated Net Worth at the time such Non-Operating Indebtedness is created, assumed or incurred.
Accrual of interest, accrual of dividends, the accretion of accreted value or the amortization of debt discount, the payment of interest in the form of additional Debt and the payment of dividends in the form of additional shares of preferred stock shall not be deemed to be an incurrence of Debt for purposes of this Section 5.12.
Section 5.13 Restricted Payments. The Company will not pay any dividend (other than dividends payable solely in its Qualified Capital Stock) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Company, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company (collectively, “Restricted Payments”), if, at the time thereof and immediately after giving effect thereto, an Event of Default under Section 6.01(a)(i), (g) or (h) shall have occurred and be continuing. Notwithstanding the foregoing, the Company may make the following Restricted Payments:
(a) cash dividends on the common Capital Stock of the Company, to the extent declared prior to the date of such Default or Event of Default, as applicable;
(b) cash dividends required pursuant to the terms of any Additional Securities issued, to the extent at the time of such issuance no Default or Event of Default occurred and was continuing;
(c) repurchases of Capital Stock of the Company deemed to occur upon the exercise of stock options or warrants if such Capital Stock represent a portion of the exercise price of such options or warrants;
(d) cash payments in lieu of the issuance of fractional shares representing insignificant interests in the Company in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock in the Company;
(e) pursuant to and in accordance with stock option plans or other benefit plans or agreements for directors, officers or employees of the Company;
(f) to the extent they constitute Restricted Payments, payments, dividends, distributions, contributions, or any other transaction, in each case in respect of trust securities, pre-capitalized trust securities, or other similar arrangement, or any Debt issued in respect of or related to any of the foregoing; and
53
(g) payments made in respect of required withholding or similar non-U.S. Taxes with respect to any future, present or former employee, director, manager, officer, partner, independent consultant or consultant and any repurchases or withholdings of Capital Stock in consideration of such payments, in each case in connection with the exercise or vesting of stock options, warrants or the issuance of restricted stock units or similar stock based awards.
Section 5.14 Sanctions; Anti-Corruption Laws.
(a) The Company will maintain in effect policies and procedures designed to promote compliance by the Company, its Subsidiaries, and their respective directors, officers, employees, and agents with applicable Sanctions and Anti-Corruption Laws in all material respects.
(b) The Company will not, directly or knowingly indirectly, use any part of the proceeds of any Term Loans, (i) for the purpose of funding, financing or facilitating any activities or business of or with, or making any payments to, any Person or in any country or territory that, at the time of such funding, financing or facilitating, is the target of Sanctions Laws in violation of applicable Sanctions Laws or (ii) for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Corruption Law.
ARTICLE VI
DEFAULTS
Section 6.01 Events of Default. If one or more of the following events (“Events of Default”) shall have occurred and be continuing:
(a) (i) the Company shall fail to pay when due any principal of the Term Loans or (ii) the Company shall fail to pay when due any interest on the Term Loans or any fees or any other amounts payable hereunder and such failure under this clause (ii) shall continue for five (5) Business Days;
(b) subject to Section 6.02, the Company shall fail to observe or perform any covenant contained in Section 5.01(d), 5.03(a) or 5.07 through 5.13 inclusive;
(c) the Company shall fail to observe or perform any covenant or agreement contained in this Agreement or the other Credit Documents (other than those covered by clause (a) or (b) above) for thirty (30) days after written notice thereof has been given to the Company by the Administrative Agent at the request of any Bank;
(d) any representation, warranty, certification or statement made by the Company in this Agreement, any other Credit Document or in any certificate, financial statement or other document delivered pursuant to this Agreement shall prove to have been incorrect (or incorrect in any material respect if such representation or warranty is not qualified by materiality or Material Adverse Effect) when made (or deemed made);
54
(e) the Company or any Material Subsidiary shall (i) fail to make any payment in respect of any Debt (other than Term Loans or other extensions of credit hereunder, or any Debt owning between or among the Company and its Subsidiaries) having a principal amount then outstanding of not less than $350,000,000 when due, and such failure shall continue beyond any applicable grace period or (ii) fail to make any payment in respect of any Derivative Financial Product when due, and such failure shall continue beyond any applicable grace period (and for this clause (ii) excluding any amount the payment of which is being disputed in good faith in accordance with the dispute resolution procedures provided for in the contract governing such Derivative Financial Product), the non-payment of which would give rise to the Company or any Material Subsidiary owing Material Unpaid Derivative Product Indebtedness in an aggregate principal amount exceeding $350,000,000, in the case of each of clauses (i) and (ii), except where such non-payment has been cured or waived prior to the exercise of any remedies under this Article VI;
(f) any event or condition shall occur which results in the acceleration of the maturity of any Debt (other than Term Loans or other extensions of credit hereunder) having a principal or face amount then outstanding of not less than $350,000,000 of the Company or any Material Subsidiary, or an early termination event shall arise with respect to any Derivative Financial Product that creates, after taking into account the effect of any legally enforceable netting agreement relating to such Derivative Financial Product, a Material Unpaid Derivative Product Indebtedness in an aggregate principal amount exceeding $350,000,000;
(g) the Company or any Material Subsidiary shall commence a voluntary case or other proceeding seeking rehabilitation, dissolution, conservation, liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall fail generally to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing;
(h) an involuntary case or other proceeding shall be commenced against the Company or any Material Subsidiary seeking rehabilitation, dissolution, conservation, liquidation, reorganization or other relief with respect to it or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, rehabilitator, dissolver, conservator, custodian or other similar official of it or any substantial part of its property, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of sixty (60) consecutive days; or an order for relief shall be entered against the Company or any such Material Subsidiary under the federal bankruptcy laws as now or hereafter in effect; or any governmental body, agency or official shall apply for, or commence a case or other proceeding to seek, an order for the rehabilitation, conservation, dissolution or other liquidation of the Company or any Material Subsidiary or of the assets or any substantial part thereof of the Company or any Material Subsidiary or any other similar remedy; or the Company shall become unable or admit in writing its inability to pay its debts as they become due;
(i) any of the following events or conditions shall occur, which, in the aggregate, would reasonably be expected to involve possible Taxes, penalties and other liabilities in an aggregate amount that results in a Material Adverse Effect: (i) any member of the ERISA Group shall fail to pay when due any amount or amounts which it shall have become liable to pay under Title IV of ERISA; (ii) notice of intent to terminate a Plan shall be filed under Title IV of ERISA by any member of the ERISA Group, any plan administrator or any combination of the foregoing; (iii) the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed to administer, any Plan; (iv) a condition shall exist by reason of which the PBGC would reasonably be expected to obtain a decree adjudicating that any Plan must be terminated; or (v) there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans.
55
(j) a judgment or order for the payment of money in excess of $350,000,000 (after (without duplication) the actual amounts of insurance recoveries, offsets and contributions received and amounts thereof not yet received but which the insurer thereon has acknowledged in writing its obligation to pay) shall be rendered against the Company or any Material Subsidiary and such judgment or order shall continue unsatisfied and unstayed for a period of sixty (60) days after entry of such judgment (and, for purposes of this clause, a judgment shall be stayed if, among other things, an appeal is timely filed and such judgment cannot be enforced);
(k) a Change of Control shall have occurred; or
(l) at any time after the execution and delivery thereof: (i) this Agreement or any Credit Document ceases to be in full force and effect (other than by reason of the satisfaction in full of the Obligations in accordance with the terms hereof) or shall be declared null and void, for any reason other than the failure of the Administrative Agent or any Bank to take any action within its control; or (ii) the Company shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by the Banks, under any Credit Document to which it is a party; then, and in every such event, and at any time thereafter during the continuance of such event, the Administrative Agent shall, if requested by the Required Banks, by notice to the Company take any or all of the following actions, at the same or different times: (i) terminate the Term Commitments and they shall thereupon terminate and (ii) declare the Term 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 Term 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;
provided that, in the case of any of the Events of Default specified in clause (g) or (h) above with respect to the Company, without any notice to the Company or any other act by the Administrative Agent or the Banks, the Term Commitments shall thereupon terminate and the principal of the Term 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 notice of any kind, all of which are hereby waived by the Company.
Notwithstanding anything herein to the contrary, for a period from the Closing Date through and including the date that is thirty (30) days after the Closing Date, if a matter or circumstance exists, which constitutes a breach of the representations, warranties or covenants or a potential or actual Event of Default, such matter or circumstance shall not be deemed to be an Event of Default so long as (i) such matter or circumstance does not constitute an Event of Default that is incapable of being cured, (ii) the Company is taking reasonable steps to cure such matter or circumstance, (iii) such potential or actual Event of Default is cured or otherwise ceases to exist within such period, (iv) the circumstances giving rise to it were not knowingly produced or approved by Parent or Merger Sub (excluding the AEL and its subsidiaries) and (v) it has not had and is not reasonably likely to result in a Material Adverse Effect; provided that, nothing in this paragraph shall affect the conditions set forth in Article III.
56
Section 6.02 Cure Right.
(a) Notwithstanding anything to the contrary contained in Section 6.01, in the event the Company fails to comply with the requirements of any financial covenant set forth in Section 5.07, the Company shall have the right (the “Cure Right”) to arrange for a cash equity contribution by Parent or any other Permitted Holder (the “Specified Equity Contribution”) in the form of Qualified Capital Stock (or if not Qualified Capital Stock, in a form reasonably acceptable to the Administrative Agent) issued by the Company to Parent or such Permitted Holder, the proceeds of which shall be contributed to the equity capital of the Company on or prior to the day that is fifteen (15) Business Days after the date on which financial statements are required to be delivered pursuant to Section 5.01(a) or 5.01(b) for any fiscal quarter (the “Cure Period”). The Company shall give written notice (the “Cure Notice”) to the Administrative Agent of its exercise of the Cure Right no later than the date on which financial statements are required to be delivered pursuant to Section 5.01(a) or 5.01(b), and upon such exercise, the proceeds of the Specified Equity Contribution shall be included in the calculation of Consolidated Total Capitalization and/or Adjusted Consolidated Net Worth for the purposes of determining compliance with the covenants in Section 5.07 at the end of such fiscal quarter and any subsequent periods that include such fiscal quarter; provided that (a) there shall be no more than two (2) quarters in each four (4) consecutive fiscal quarter period in respect of which a Specified Equity Contribution is made, (b) no more than five (5) Specified Equity Contributions shall be made during the term of this Agreement, (c) the amount of any Specified Equity Contribution shall be no more than the amount required to cause the Company to be in compliance with the covenants in Section 5.07 on a pro forma basis, (d) all Specified Equity Contributions shall be disregarded for purposes of any financial ratio determination under this Agreement other than for purposes of determining compliance with the covenants in Section 5.07 and (e) to the extent the Specified Equity Contribution is applied to prepay Debt, there shall be no reduction in Debt with the proceeds of such Specified Equity Contribution for determining compliance with the covenants in Section 5.07 for the fiscal quarter for which such Specified Equity Contribution was made.
(b) Upon delivery by the Company to the Administrative Agent of a Cure Notice prior to the last day of the Cure Period, (i) any applicable Event of Default with respect to the covenants in Section 5.07 shall be deemed retroactively not to have occurred until the expiration of the Cure Period and (ii) neither the Administrative Agent nor any Bank shall exercise any rights or remedies under this Agreement (or any rights and remedies under any other Credit Document that are available during the continuance of an Event of Default) on the basis of any failure to comply with the covenants in Section 5.07 until the expiration of the Cure Period.
ARTICLE VII
THE ADMINISTRATIVE AGENT
Section 7.01 Appointment and Authorization. Each Bank irrevocably appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms hereof or thereof, together with all such powers as are reasonably incidental thereto.
57
Section 7.02 Agent’s Fee. The Company shall pay to the Administrative Agent for its own account fees in the amounts and at the times previously agreed upon between the Company and the Administrative Agent.
Section 7.03 [Reserved].
Section 7.04 Action by Agent. The obligations of the Administrative Agent hereunder are only those expressly set forth herein. The Administrative Agent shall not have any duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this Agreement, unless it shall be requested in writing to do so by the Required Banks. Without limiting the generality of the foregoing, the Administrative Agent shall not be required to take any action with respect to any Default or Event of Default, except as expressly provided in Article VI. The Administrative Agent shall have no duty to disclose to the Banks information that is not required to be furnished by the Company to the Administrative Agent at such time, but is voluntarily furnished by the Company to the Administrative Agent (either in its capacity as Administrative Agent or in its individual capacity).
Section 7.05 Erroneous Payments.
(a) If the Administrative Agent (x) notifies a Bank, or any Person who has received funds on behalf of a Bank (any such Bank or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its reasonable discretion (whether or not after receipt of any notice under immediately succeeding clause (b)) that any funds (as set forth in such notice from the Administrative Agent) received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously or mistakenly transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Bank or other Payment Recipient on its behalf) (any such funds, whether transmitted or received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”) and (y) demands in writing the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent pending its return or repayment as contemplated below in this Section 7.05 and held in trust for the benefit of the Administrative Agent, and such Bank shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two (2) Business Days thereafter (or such later date as the Administrative Agent may, in its sole discretion, specify in writing), return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received). A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.
(b) Without limiting immediately preceding clause (a), each Bank or any Person who has received funds on behalf of a Bank, agrees that if it receives a payment, prepayment or repayment (whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise) from the Administrative Agent (or any of its Affiliates) (x) that is in a different amount than, or on a different date from, that specified in this Agreement or in a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates) with respect to such payment, prepayment or repayment, (y) that was not preceded or accompanied by a notice of payment, prepayment or repayment sent by the Administrative Agent (or any of its Affiliates), or (z) that such Bank or other recipient, otherwise becomes aware was transmitted, or received, in error or by mistake (in whole or in part), then in each such case:
58
(i) it acknowledges and agrees that (A) in the case of immediately preceding clauses (x) or (y), an error and mistake shall be presumed to have been made (absent written confirmation from the Administrative Agent to the contrary) or (B) an error and mistake has been made (in the case of immediately preceding clause (z)), in each case, with respect to such payment, prepayment or repayment; and
(ii) such Bank shall (and shall cause any other recipient that receives funds on its respective behalf to) promptly (and, in all events, within one (1) Business Day of its knowledge of the occurrence of any of the circumstances described in immediately preceding clauses (x), (y) and (z)) notify the Administrative Agent of its receipt of such payment, prepayment or repayment, the details thereof (in reasonable detail) and that it is so notifying the Administrative Agent pursuant to this Section 7.05(b).
Notwithstanding anything herein to the contrary, the failure to deliver a notice to the Administrative Agent pursuant to this Section 7.05(b) shall not have any effect on a Payment Recipient’s obligations pursuant to Section 7.05(a) or on whether or not an Erroneous Payment has been made
(c) Each Bank hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Bank under any Credit Document, or otherwise payable or distributable by the Administrative Agent to such Bank under any Credit Document with respect to any payment of principal, interest, fees or other amounts, against any amount that the Administrative Agent has demanded to be returned under immediately preceding Section 7.05(a).
(d)
(i) In the event that an Erroneous Payment (or portion thereof) is not recovered by the Administrative Agent for any reason, after demand therefor in accordance with immediately preceding clause (a), from any Bank that has received such Erroneous Payment (or portion thereof) (and/or from any Payment Recipient who received such Erroneous Payment (or portion thereof) on its respective behalf) (such unrecovered amount, an “Erroneous Payment Return Deficiency”), upon the Administrative Agent’s notice to such Bank at any time, then effective immediately (with the consideration therefor being acknowledged by the parties hereto), (A) such Bank shall be deemed to have assigned its Term Loans with respect to which such Erroneous Bank was made (the “Erroneous Payment Impacted Class”) in an amount equal to the Erroneous Payment Return Deficiency (or such lesser amount as the Administrative Agent may specify) (such assignment of the Term Loans of the Erroneous Payment Impacted Class, the “Erroneous Payment Deficiency Assignment”) (on a cashless basis and such amount calculated at par plus any accrued and unpaid interest (with the assignment fee to be waived by the Administrative Agent in such instance)), and is hereby (together with the Company) deemed to execute and deliver an Assignment and Assumption (or, to the extent applicable, an agreement incorporating an Assignment and Assumption by reference pursuant to an electronic platform approved by the Administrative Agent as to which the Administrative Agent and such parties are participants) with respect to such Erroneous Payment Deficiency Assignment, and such Bank shall deliver any Notes evidencing such Term Loans to the Company or the Administrative Agent (but the failure of such Person to deliver any such Notes shall not affect the effectiveness of the foregoing assignment), (B) the Administrative Agent as the assignee Bank shall be deemed to have acquired the Erroneous Payment Deficiency Assignment, (C) upon such deemed acquisition, the Administrative Agent as the assignee Bank shall become a Bank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment and the assigning Bank shall cease to be a Bank, as applicable, hereunder with respect to such Erroneous Payment Deficiency Assignment, excluding its obligations under the indemnification provisions of this Agreement which shall survive as to such assigning Bank, (D) the Administrative Agent and the Company shall each be deemed to have waived any consents required under this Agreement to any such Erroneous Payment Deficiency Assignment, and (E) the Administrative Agent will reflect in the Register its ownership interest in the Term Loans subject to the Erroneous Payment Deficiency Assignment.
59
(ii) Subject to Section 9.06 (but excluding, in all events, any assignment consent or approval requirements (whether from the Company or otherwise)), the Administrative Agent may, in its discretion, sell any Term Loans acquired pursuant to an Erroneous Payment Deficiency Assignment and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by the applicable Bank shall be reduced by the net proceeds of the sale of such Term Loans (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Bank (and/or against any recipient that receives funds on its respective behalf). In addition, an Erroneous Payment Return Deficiency owing by the applicable Bank (x) shall be reduced by the proceeds of prepayments or repayments of principal and interest, or other distribution in respect of principal and interest, received by the Administrative Agent on or with respect to any such Term Loans acquired from such Bank pursuant to an Erroneous Payment Deficiency Assignment (to the extent that any such Term Loans are then owned by the Administrative Agent) and (y) may, in the sole discretion of the Administrative Agent, be reduced by any amount specified by the Administrative Agent in writing to the applicable Bank from time to time.
(e) The parties hereto agree that (x) irrespective of whether the Administrative Agent may be equitably subrogated, in the event that an Erroneous Payment (or portion thereof) is not recovered from any Payment Recipient that has received such Erroneous Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights and interests of such Payment Recipient (and, in the case of any Payment Recipient who has received funds on behalf of a Bank, to the rights and interests of such Bank) under the Credit Documents with respect to such amount (the “Erroneous Payment Subrogation Rights”) (provided that, the Company’s Obligations under the Credit Documents in respect of the Erroneous Payment Subrogation Rights shall not be duplicative of such Obligations in respect of Term Loans that have been assigned to the Administrative Agent under an Erroneous Payment Deficiency Assignment) and (y) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Company; provided that, this Section 7.05 shall not be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Company relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided further that, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Company for the purpose of making such Erroneous Payment. Notwithstanding anything herein to the contrary, it is understood and agreed that if the Company has paid principal, interest or any other amounts owed pursuant to a Credit Document, nothing in this Section 7.05 shall require the Company to pay additional amounts that are duplicative of such amounts previously paid.
60
(f) To the extent permitted by applicable law, no Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including, without limitation, any defense based on “discharge for value” or any similar doctrine.
(g) Each party’s obligations, agreements and waivers under this Section 7.05 shall survive the resignation or replacement of the Administrative Agent and/or the repayment, satisfaction or discharge of all Obligations (or any portion thereof) under any Credit Document.
Section 7.06 Liability of Agent. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be liable to any Bank for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Banks, the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Bank stating that a Default or Event of Default has occurred and specifying the nature thereof. Neither the Administrative Agent nor any of its directors, officers, agents or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of the Company; (iii) the satisfaction of any condition specified in Article III, except receipt of items required to be delivered to the Administrative Agent; (iv) the validity, effectiveness or genuineness of this Agreement, any other Credit Document or any other instrument or writing furnished in connection herewith; (v) the existence or possible existence of any Default or Event of Default; (vi) the financial condition of the Company or any of its Subsidiaries; or (vii) the contents of any certificate, report or other document delivered hereunder or in connection herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, statement, or other writing believed by it in good faith to be genuine or to be signed by the proper party or parties.
Section 7.07 Indemnification. Each Bank shall, ratably in accordance with its outstanding Term Loans (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought), indemnify and hold harmless the Administrative Agent (to the extent not reimbursed by the Company) against any cost, expense (including counsel fees and disbursements), claim, demand, action, loss or liability (except such as result from the Administrative Agent’s gross negligence or willful misconduct as determined by a court of competent jurisdiction) that the Administrative Agent may suffer or incur in connection with this Agreement or any action taken or omitted by the Administrative Agent hereunder. The Administrative Agent shall be fully justified in failing or refusing to take any action hereunder unless it shall first be indemnified to its satisfaction by the Banks pro rata against any and all liability, cost and expense that it may incur by reason of taking or continuing to take any such action.
Section 7.08 Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Bank, 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 Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Bank, 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 any action under this Agreement.
61
Section 7.09 Successor Agent. (a) The Administrative Agent may resign at any time by giving written notice thereof to the Banks and the Company. Upon any such resignation, the Required Banks shall have the right to appoint from among the Banks a successor Administrative Agent; provided that so long as no Event of Default under Section 6.01(a), (g) or (h) has occurred and is continuing such successor Administrative Agent shall be subject to the consent of the Company, which consent shall not be unreasonably withheld; provided further that in no event shall any successor Administrative Agent be a Disqualified Institution. If no successor Administrative Agent shall have been so appointed by the Required Banks, and shall have accepted such appointment, within thirty (30) days after the retiring Administrative Agent gives notice of resignation, then the retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative Agent, which shall be a commercial bank organized or licensed under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least $100,000,000; provided that so long as no Event of Default under Section 6.01(a), (g) or (h) has occurred and is continuing such successor Administrative Agent shall be subject to the consent of the Company, which consent shall not be unreasonably withheld.
(b) If the Person serving as Administrative Agent is a Defaulting Bank pursuant to clause (d) of the definition thereof, the Required Banks may, to the extent permitted by applicable law, with the written consent of the Company and by notice in writing to such Person, remove such Person as Administrative Agent and, with the written consent of the Company, appoint a successor.
(c) Upon the acceptance of its appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring or removed Administrative Agent, and the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder. After any retiring or removed Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent.
Section 7.10 Delegation to Affiliates. The Company and the Banks agree that the Administrative Agent may delegate any of its duties under this Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, agents and employees) which performs duties in connection with this Agreement shall be entitled to the same benefits of the indemnification, waiver and other protective provisions to which the Administrative Agent is entitled under Articles VII and IX.
Section 7.11 Joint Lead Arrangers and Joint Bookrunners. Notwithstanding anything herein to the contrary, none of the Joint Lead Arrangers or Joint Bookrunners listed on the cover page of this Agreement shall have any right, power, obligation, liability, responsibility or duty under this Agreement in its capacity as such, except in its respective capacity, if any, as a Bank.
Section 7.12 Certain ERISA Matters.
(a) Each Bank (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent, each Joint Lead Arranger and each Joint Bookrunner and not to or for the benefit of the Company, that at least one of the following is and will be true:
62
(i) such Bank is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Bank’s entrance into, participation in, administration of and performance of the Term Loans, the Term Commitments or this Agreement,
(ii) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 9623 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Bank’s entrance into, participation in, administration of and performance of the Term Loans, the Term Commitments and this Agreement,
(iii) (A) such Bank is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such Qualified Professional Asset Manager made the investment decision on behalf of such Bank to enter into, participate in, administer and perform the Term Loans, the Term Commitments and this Agreement, (C) the entrance into, participation in, administration of and performance of the Term Loans, the Term Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84- 14 and (D) to the best knowledge of such Bank, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Bank’s entrance into, participation in, administration of and performance of the Term Loans, the Term Commitments and this Agreement, or
(iv) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent or the applicable Joint Lead Arranger or Joint Bookrunner, as applicable, in each case in its sole discretion, and such Bank.
(b) In addition, unless either (1) sub-clause (i) in the immediately preceding clause (a) is true with respect to a Bank or (2) a Bank has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding clause (a), such Bank further (x) represents and warrants, as of the date such Person became a Bank party hereto, to, and (y) covenants, from the date such Person became a Bank party hereto to the date such Person ceases being a Bank party hereto, for the benefit of, the Administrative Agent, each Joint Lead Arranger and each Joint Bookrunner and not to or for the benefit of the Company, that none of the Administrative Agent, any Joint Lead Arranger or any Joint Bookrunner is a fiduciary with respect to the assets of such Bank involved in such Bank’s entrance into, participation in, administration of and performance of the Term Loans, the Term Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent, each Joint Lead Arranger and each Joint Bookrunner under this Agreement, any Credit Document or any documents related hereto or thereto).
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
Section 8.01 Benchmark Replacement Setting. (a) Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m., New York City time, on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Banks without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Banks comprising the Required Banks. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
63
(b) In connection with the implementation of a Benchmark Replacement, the Administrative Agent will have the right, in consultation with the Company, to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(c) The Administrative Agent will promptly notify the Company and the Banks of (i) the implementation of any Benchmark Replacement and (ii) the effectiveness of any Benchmark Replacement Conforming Changes. The Administrative Agent will notify the Company of (x) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 8.01(d) and (y) the commencement of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Bank (or group of Banks) pursuant to this Section 8.01, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 8.01.
(d) Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Reference Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is not or will not be representative, then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is not or will not be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” (or any similar or analogous definition) for all Benchmark settings at or after such time to reinstate such previously removed tenor.
64
(e) Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any pending request for a SOFR Borrowing of, conversion to or continuation of SOFR Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Company will be deemed to have converted any such request into a request for a Borrowing of or conversion to Base Rate Loans. During a Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
Section 8.02 Illegality. If, after the date of this Agreement, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for any Bank (or its Applicable Lending Office) to make, continue, maintain or fund its SOFR Loans and such Bank shall so notify the Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other Banks and the Company, whereupon until such Bank notifies the Company and the Administrative Agent that the circumstances giving rise to such suspension no longer exist, the obligation of such Bank to make SOFR Loans shall be suspended. Before giving any notice to the Administrative Agent pursuant to this Section 8.02, such Bank shall designate a different Applicable Lending Office if such designation will avoid the need for giving such notice and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank shall determine that it may not lawfully continue to maintain and fund any of its outstanding SOFR Loans to maturity and shall so specify in such notice, the Company shall immediately prepay in full the then outstanding principal amount of each such SOFR Loan, together with accrued interest thereon. Concurrently with prepaying each such SOFR Loan, the Company shall borrow Base Rate Term Loans in an equal principal amount from such Bank (on which interest and principal shall be payable contemporaneously with the related SOFR Loans of the other Banks), and such Bank shall make such Base Rate Term Loans.
Section 8.03 Increased Cost and Reduced Return. (a) If on or after the date hereof, in the case of any Term Loan or any obligation to make Term Loans, the adoption of any applicable law, rule or regulation, or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Applicable Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall impose, modify or deem applicable any reserve (including any such requirement imposed by the Board), special deposit, compulsory loan, insurance assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Bank (or its Applicable Lending Office) (except any Tax), shall impose on any Bank (or its Applicable Lending Office) any other condition affecting its Term Loans, its Notes or its obligation to make Term Loans, or shall subject any Bank (or its Applicable Lending Office) to any Taxes (other than Indemnified Taxes and Excluded Taxes) on its loans, loan principal, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, and the result of any of the foregoing is to increase the cost or expense to such Bank (or its Applicable Lending Office) of making, continuing, converting to or maintaining any Term Loan, or to reduce the amount of any sum received or receivable by such Bank (or its Applicable Lending Office) under this Agreement or under other Credit Document with respect thereto, by an amount deemed by such Bank to be material, then, within thirty (30) days after demand by such Bank (with a copy to the Administrative Agent), the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction.
65
(b) If any Bank shall have determined that, after the Closing Date (subject to clause (d) below), the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change in any applicable law, rule or regulation regarding capital adequacy or liquidity requirements, or any change in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or any request or directive regarding capital adequacy or liquidity requirements (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on capital of such Bank (or its parent) as a consequence of such Bank’s obligations hereunder to a level below that which such Bank (or its parent) could have achieved but for such adoption, change, request or directive (taking into consideration its policies with respect to capital adequacy and liquidity) by an amount deemed by such Bank to be material, then from time to time, within thirty (30) days after demand by such Bank (with a copy to the Administrative Agent), the Company shall pay to such Bank such additional amount or amounts as will compensate such Bank (or its parent) for such reduction. Notwithstanding anything to the contrary in this Section 8.03, the Company shall not be required to compensate a Bank pursuant to Section 8.03(a) or (b) for any amounts incurred more than 270 days prior to the date that such Bank notifies the Company of such Bank’s intention to claim compensation therefor, to the extent such Bank had knowledge of the circumstances giving rise to such claim for compensation and its effects on the rate of return on capital in respect of this facility prior to such 270 day period; provided that, if the change in law giving rise to any such increased cost or reductions is retroactive, then the 270 day period referred to above shall be extended to include the period of retroactive effect thereof.
(c) Each Bank will promptly notify the Company and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Bank to compensation pursuant to this Section 8.03. A certificate of any Bank claiming compensation under this Section 8.03 and setting forth the additional amount or amounts to be paid to it hereunder and, in reasonable detail, such Bank’s computation of such amount or amounts, shall be conclusive in the absence of manifest error. In determining such amount, such Bank may use any reasonable averaging and attribution methods.
(d) Notwithstanding anything herein to the contrary, for purposes of this Section 8.03, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to have gone into effect after the Closing Date, regardless of the date enacted, adopted or issued; provided that no Bank shall demand compensation pursuant to this Section 8.03 as a result of increased cost or reduced return resulting from Basel III or the Dodd-Frank Wall Street Reform and Consumer Protection Act if it shall not at the time be the general policy or practice of such Bank to demand such compensation from similarly situated borrowers (to the extent that, with respect to such increased cost or reduced return, such Bank has the right to do so under its credit facilities with similarly situated borrowers).
66
Section 8.04 Base Rate Term Loans Substituted for Affected SOFR Loans. If (i) the obligation of any Bank to make or continue SOFR Loans has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation under Section 8.03(a) or 8.05 and the Company shall, by at least five (5) U.S. Government Securities Business Days’ prior notice to such Bank through the Administrative Agent, have elected that the provisions of this Section 8.04 shall apply to such Bank, then, unless and until such Bank notifies the Company that the circumstances giving rise to such suspension or demand for compensation no longer apply:
(a) all Term Loans which would otherwise be made, or continued, by such Bank as SOFR Loans shall be made instead as, or converted into, Base Rate Term Loans (on which interest and principal shall be payable contemporaneously with the related SOFR Loans of the other Banks), and
(b) after each of its SOFR Loans has been repaid, all payments of principal which would otherwise be applied to repay such SOFR Loans shall be applied to repay its Base Rate Term Loans instead.
Section 8.05 Taxes. (a) For purposes of this Section 8.05, the term “applicable law” includes FATCA.
(b) Any and all payments by or on account of any obligation of the Company hereunder or under any other Credit Document shall be made free and clear and without deduction or withholding for any Taxes, except as required by applicable law. If any applicable law requires the Withholding Agent to deduct or withhold any Taxes from any such payments, then (i) such Withholding Agent shall make such deductions or withholdings, (ii) such Withholding Agent shall pay the full amount deducted or withheld to the relevant taxation authority or other authority in accordance with applicable law, and (iii) if such Tax is an Indemnified Tax, then the sum payable by the Company shall be increased as necessary so that after making all required deductions and withholdings (including deductions and withholdings applicable to additional sums payable under this Section 8.05) the applicable recipient receives an amount equal to the sum it would have received had no such deductions or withholdings been made.
(c) The Company shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes, in each case, within ten (10) days after demand therefor.
(d) The Company agrees to indemnify each Bank and the Administrative Agent for the full amount of any Indemnified Taxes, (including any Indemnified Taxes imposed or asserted on amounts payable under this Section 8.05), whether or not correctly or legally imposed or asserted by the relevant governmental authority, payable or paid by such Bank or the Administrative Agent (as the case may be) or required to be withheld or deducted from a payment to such Bank or the Administrative Agent and reasonable expenses arising therefrom or with respect thereto. This indemnification shall be paid within ten (10) days after such Bank or the Administrative Agent, as the case may be, makes demand therefor. A certificate as to the amount of such payment or liability delivered to the Company by a Bank (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Bank, shall be conclusive absent manifest error.
67
(e) Each Bank shall severally indemnify the Administrative Agent, within ten (10) days after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to the extent that the Company has not already indemnified the Administrative Agent for such Indemnified Tax and without limiting the obligation of the Company to do so), (ii) any Taxes attributable to such Bank’s failure to comply with the provisions of Section 9.06 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Bank, in each case, that are payable or paid by the Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Bank by the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Bank under any Credit Document or otherwise payable by the Administrative Agent to the Bank from any other source against any amount due to the Administrative Agent under this paragraph (e).
(f) After any payment of Taxes by the Company to a Governmental Authority pursuant to this Section 8.05, the Company shall promptly furnish to the Administrative Agent, at its address referred to in Section 9.01, the original or a certified copy of a receipt evidencing payment thereof, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent and, if such receipt relates to a Tax in respect of a sum payable to any Bank, the Administrative Agent shall promptly deliver such original or certified copy to such Bank.
(g)
(i) Any Bank that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Bank, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Bank is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in paragraphs (g)(ii)(1), (ii)(2) and (ii)(4) of this Section) shall not be required if in the Bank’s reasonable judgment such completion, execution or submission would subject such Bank to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Bank.
(ii) Without limiting the generality of the foregoing, on or prior to the date on which a Bank becomes a Bank under this Agreement:
(1) any Bank that is a U.S. Person shall deliver to the Company and the Administrative Agent on or about the date on which such Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Bank is exempt from U.S. federal backup withholding tax;
68
(2) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), whichever of the following is applicable:
(A) in the case of a Foreign Bank claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(B) executed copies of IRS Form W-8ECI;
(C) in the case of a Foreign Bank claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Bank is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Company within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to the Company as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or
(D) to the extent a Foreign Bank is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Bank is a partnership and one or more direct or indirect partners of such Foreign Bank are claiming the portfolio interest exemption, such Foreign Bank may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of each such direct and indirect partner;
(3) any Foreign Bank shall, to the extent it is legally entitled to do so, deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Bank becomes a Bank under this Agreement (and from time to time thereafter upon the reasonable request of the Company or the Administrative Agent), executed copies of any other form prescribed by applicable 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 law to permit the Company or the Administrative Agent to determine the withholding or deduction required to be made; and
69
(4) if a payment made to a Bank under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Bank 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 Bank 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 that such Bank has complied with such Bank’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (4), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Bank agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Withholding Agent in writing of its legal inability to do so.
(h) If any party hereto determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 8.05 (including the payment of additional amounts pursuant to this Section 8.05), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under Section 8.03 or this Section 8.05 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (h) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority with respect to such amount) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (h), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (h) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.
(i) On or prior to the Closing Date, the Administrative Agent shall deliver to the Company either: (i) an executed original of IRS Form W-8IMY certifying in Part I that the Administrative Agent is a U.S. branch of a foreign bank and certifying in Part VI, Line 19.b., that the Administrative Agent agrees to be treated as a U.S. Person with respect to any payments made to it under any Credit Documents, or (ii) in the event that it is not acting through a U.S. branch, an IRS Form W-8IMY, together with a withholding statement in accordance with Treasury Regulation Section 1.1441-1(e)(3)(iv) and Treasury Regulation Section 1.1471-3(c)(3)(iii)(B) and a withholding certificate (or suitable substitute form) as defined in Treasury Regulation 1.1441-1(c)(16) and in accordance with Treasury Regulation Section 1.1471-3(c)(3) from each Bank (together with any accompanying certificate or other document as my be required under the Code and the regulations thereunder). The Administrative Agent agrees that if such IRS Form W-8IMY previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or promptly notify the Company in writing of its legal inability to do so.
70
(j) Each party’s obligations under this Section 8.05 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Bank, the termination of the Term Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.
Section 8.06 Inability to Determine Rates. Subject to Section 8.01, if on or prior to the first day of any Interest Period for any SOFR Loan:
(a) the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof, or
(b) the Required Banks determine that for any reason in connection with any request for a SOFR Loan or a conversion thereto or a continuation thereof that Term SOFR for any requested Interest Period with respect to a proposed SOFR Loan does not adequately and fairly reflect the cost to such Banks of funding such Loan, and the Required Lenders have provided notice of such determination to the Administrative Agent,
the Administrative Agent will promptly so notify the Company and each Bank in writing.
Upon notice thereof by the Administrative Agent to the Company, any obligation of the Banks to make or maintain SOFR Loans, and any right of the Company to continue SOFR Loans or to convert ABR Loans to SOFR Loans shall be suspended (to the extent of the affected Interest Periods) until the Administrative Agent (with respect to clause (a) above, at the instruction of the Required Banks) revokes such notice. Upon receipt of such notice, (i) the Company may revoke any pending request for a borrowing of, conversion to or continuation of SOFR Loans (to the extent of the affected Interest Periods) or, failing that, the Company will be deemed to have converted any such request into a request for a Borrowing of or conversion to Daily Simple SOFR Loans (or, if the Administrative Agent reasonably determines that adequate and reasonable means do not exist for determining Daily Simple SOFR, Base Rate Loans) in the amount specified therein and (ii) any outstanding affected SOFR Loans will be deemed to have been converted into Daily Simple SOFR Loans (or, if the Administrative Agent reasonably determines that adequate and reasonable means do not exist for determining Daily Simple SOFR, Base Rate Loans) at the end of the applicable Interest Period. Upon any such conversion, the Company shall also pay accrued interest on the amount so converted. Subject to Section 8.01, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that “Term SOFR” cannot be determined pursuant to the definition thereof on any given day, the interest rate on Base Rate Loans shall be determined by the Administrative Agent without reference to clause (c) of the definition of “Base Rate” until the Administrative Agent revokes such determination.
Section 8.07 Mitigation Obligations; Replacement of Banks. (a) If any Bank requests compensation under Section 8.03, or if the Company is required to pay any additional amount to any Bank or any governmental body, agency or official for the account of any Bank pursuant to Section 8.05, then such Bank shall use reasonable efforts to designate a different Applicable Lending Office for funding or booking its Term Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Bank (with the concurrence of the Company), such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 8.03 or 8.05, as the case may be, in the future and (ii) would not subject such Bank to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Bank. The Company hereby agrees to pay all reasonable costs and expenses incurred by any Bank in connection with any such designation or assignment.
71
(b) If (i) any Bank requests compensation under Section 8.03, (ii) the Company is required to pay any additional amount to any Bank or any governmental body, agency or official for the account of any Bank pursuant to Section 8.05, (iii) any Bank becomes a Defaulting Lender or (iv) any Bank is a Non-Consenting Bank,
then the Company may, at its sole expense and effort, upon notice to such Bank and the Administrative Agent, require such Bank to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.06(c)), all its interests, rights and obligations under this Agreement (or, in the case of any such assignment and delegation resulting from a failure to provide a consent in its capacity as a Bank, all its interests, rights and obligations under this Agreement and the other Credit Documents as a Bank) to an Assignee that shall assume such obligations (which Assignee may be another Bank, if a Bank 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 Bank shall have received payment of an amount equal to the outstanding principal of its Term Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder (if applicable, in each case only to the extent such amounts relate to its interest as a Bank), from the Assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company (in the case of all other amounts), (iii) in the case of any such assignment resulting from a claim for compensation under Section 8.03 or payments required to be made pursuant to Section 8.05, such assignment will result in a reduction in such compensation or payments, (iv) in the case of any such assignment in respect of a Non-Consenting Bank, the applicable Assignee shall have consented to the applicable amendment, waiver or consent, and (v) such assignment does not conflict with applicable law. A Bank shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Bank or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Notices. All notices, requests and other communications to any party hereunder shall be in writing (including by electronic communication, if arrangements for doing so have been approved by such party) and shall be given to such party: (a) in the case of the Company, at its address or electronic mail address set forth on its signature page hereto, (b) in the case of the Administrative Agent, at its address or electronic mail address set forth on its signature page hereto, (c) in the case of any Bank, at its address or electronic mail address set forth in its Administrative Questionnaire or (d) in the case of any other party, such other address or electronic mail address as such party may hereafter specify for the purpose by notice to the Administrative Agent and the Company. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid and return receipt requested, (ii) if delivered by electronic mail or any other telecommunications device, when transmitted to an electronic mail address (or by another means of electronic delivery) or (iii) if given by any other means, when delivered at the relevant address specified by such party pursuant to this Section 9.01; provided that notices to the Administrative Agent under Article II or Article VIII shall not be effective until received.
Notices and other communications to the Banks 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 Bank. 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.
72
Section 9.02 No Waivers. No failure or delay by the Administrative Agent or any Bank in exercising any right, power or privilege hereunder or under any other Credit Document shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
Section 9.03 Expenses; Indemnification; Limitation of Liability. (a) The Company shall pay (i) all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent, the Joint Lead Arrangers and each of their respective Affiliates, including reasonable and documented fees and disbursements of one primary counsel and, if necessary and with prior notice to the Company, a single special or local counsel in each relevant material jurisdiction (which may include special counsel acting in multiple jurisdictions), for the Administrative Agent, in connection with the preparation, due diligence, administration and closing of this Agreement and the other Credit Documents, any waiver or consent hereunder or any amendment hereof or any Default or alleged Default hereunder and (ii) if an Event of Default occurs and is continuing, all reasonable and documented out-of-pocket costs and expenses incurred by the Administrative Agent and each Bank, including reasonable and documented fees and disbursements of one firm of primary counsel and, if reasonably necessary and with prior notice to the Company, a single special or local counsel in each relevant material jurisdiction (which may include special counsel acting in multiple jurisdictions), in connection with such Event of Default and collection, bankruptcy, insolvency and other enforcement proceedings resulting therefrom. All amounts due under this clause (a) shall be paid within thirty (30) days after written demand therefor (in each case, together with backup documentation supporting such reimbursement request); provided that, with respect to the Closing Date, all amounts due under this clause (a) shall be paid on the Closing Date solely to the extent invoiced to the Company within three (3) Business Days prior to the Closing Date.
(b) The Company agrees to indemnify the Administrative Agent, each Joint Lead Arranger, each Joint Bookrunner, each Bank and their respective Related Parties (each an “Indemnitee”) and hold each Indemnitee harmless from and against any and all Liabilities, reasonable and documented out-of-pocket costs and expenses of any kind, including costs of settlement and the reasonable and documented out-of-pocket fees and disbursements of one counsel for the Indemnitees taken as a whole (unless the Indemnitees have actual or reasonably perceived conflicts of interest where the Indemnitees affected by such conflict inform the Company in writing of such conflict, in which case such expenses shall include the reasonable and documented out-of-pocket fees and disbursements of one additional counsel in each relevant material jurisdiction and to each group of similarly affected Indemnitees) and, with prior written notice to the Company, one local counsel for the Indemnitees in any relevant jurisdiction (which may include special counsel acting in multiple jurisdictions), which may be incurred by such Indemnitee in connection with, or as a result of, any actual or prospective claim, litigation, investigation or any investigative, administrative or judicial proceeding (whether or not such Indemnitee shall be designated a party thereto or whether such proceeding is brought by the Company, its Affiliates, its equity holders or its creditors) relating to or arising out 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 any other transactions contemplated hereby; (ii) any Term Loan or the use of proceeds therefrom; or (iii) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing clauses (i) and (ii), whether based on contract, tort, or any other theory and regardless of whether any Indemnitee is a party thereto; provided that no Indemnitee shall have the right to be indemnified hereunder to the extent that such Liabilities or related expenses have resulted from (x) the gross negligence, willful misconduct or bad faith of such Indemnitee or Related Indemnitee, (y) the material breach by such Indemnitee or Related Indemnitee of its material obligations hereunder or (z) any claim, litigation, or proceeding solely among Indemnitees brought by any Indemnitee against another Indemnitee (other than any claim, litigation, or proceeding against an Indemnitee acting in its capacity as Administrative Agent, a Joint Lead Arranger or a Joint Bookrunner) that does not involve an act or omission (or alleged act or omission) by the Company or any of its Affiliates, in the case of each of the foregoing clauses (x) and (y), as determined in a final and non-appealable judgment by a court of competent jurisdiction. All amounts due under this clause (b) shall be paid within thirty (30) days after written demand therefor (together with backup documentation supporting such reimbursement request); provided, however, that any such applicable Indemnitee or Related Indemnitee shall promptly refund such amount to the extent that there is a final judicial or arbitral determination that such Indemnitee or Related Indemnitee was not entitled to indemnification rights with respect to such payment pursuant to the express terms of this clause (b). The Company shall not, without the prior written consent of each Indemnitee affected thereby (which consent shall not be unreasonably withheld), effect any settlement of any pending or threatened investigation, litigation or proceeding against an Indemnitee in respect of which indemnity could have been sought hereunder by such Indemnitee unless such settlement (A) includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such investigation, litigation or proceeding and (B) does not include any statement as to any admission of fault. Notwithstanding anything herein to the contrary, this clause (b) shall not apply to Taxes, other than any Taxes that represent Liabilities or related expenses arising from any non-Tax claim.
73
(c) To the extent permitted by applicable law, the Company shall not assert, and hereby waives, any claim against the Administrative Agent, any Joint Lead Arranger, any Joint Bookrunner, any Bank and any Related Party of any of the foregoing (each such Person, a “Bank-Related Person”), 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 contemplated hereby, the Term Loans or the use of the proceeds thereof. None of the Company or its Related Parties shall have any liability under this Section 9.03 for special, indirect, consequential or punitive damages arising out of, related to or in connection with any aspect of this Agreement or any agreement or instrument contemplated hereby or the transactions contemplated hereby; provided that this sentence shall not limit the Company’s indemnification obligations herein to the extent that such special, indirect, consequential or punitive damages are included in any third party claim in connection with which an Indemnitee is otherwise entitled to indemnification hereunder.
(d) No Bank-Related Person, the Company or any of its Related Parties shall be liable for any Liabilities arising from the use by others of any information or other materials obtained through IntraLinks, Syndtrak, ClearPar, DebtDomain or other similar information transmission systems in connection with this Agreement or any other Credit Document, except to the extent any such Liabilities are found by a final, non-appealable judgment of a court of competent jurisdiction to arise from the gross negligence, bad faith or willful misconduct of such Person.
(e) The agreements in this Section 9.03 shall survive the resignation of the Administrative Agent, the replacement of any Bank, the termination of the Term Commitments and the repayment, satisfaction or discharge of all the other Obligations.
74
Section 9.04 Sharing of Payments. Each Bank agrees that if it shall, by exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of the aggregate amount of principal and interest due with respect to any Term Loan made by it which is greater than the proportion received by any other Bank in respect of the aggregate amount of principal and interest due with respect to any Term Loan made by such other Bank, the Bank receiving such proportionately greater payment shall purchase such participations in the Term Loans held by the other Banks, as applicable, and such other adjustments shall be made, as may be required so that all such payments of principal and interest with respect to the Term Loans made by the Banks shall be shared by the Banks pro rata; provided that (a) nothing in this Section 9.04 shall impair the right of any Bank to exercise any right of set-off or counterclaim it may have and to apply the amount subject to such exercise to the payment of indebtedness of the Company other than its indebtedness under this Agreement and (b) the provisions of this Section 9.04 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. The Company agrees, to the fullest extent it may effectively do so under applicable law, that any holder of a participation in the Term Loans, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of set-off or counterclaim and other rights with respect to such participation as fully as if such holder of a participation were a direct creditor of the Company in the amount of such participation.
Section 9.05 Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Company and the Required Banks or by the Administrative Agent (with the consent of the Required Banks) (and, if the rights or duties of the Administrative Agent, in such capacity, are affected thereby, by the Administrative Agent); provided that no such amendment or waiver shall (a) increase the amount or extend the expiry date of the Term Commitment of any Bank without the written consent of such Bank, (b) reduce the principal amount of any Term Loan, the rate or amount of interest thereon (other than a waiver of the default rate of interest imposed pursuant to Section 2.06(d)) or any fees payable to any Bank hereunder, without the written consent of each Bank directly and adversely affected thereby (it being understood that any change to the defined terms used in computing financial covenants or ratios hereunder or any change or amendment in connection with the replacement of Term SOFR or any other Benchmark Replacement (including any change or amendment to Section 8.01) shall not constitute a reduction in the rate or amount of interest or fees for purposes of this clause (b)), (c) postpone the scheduled date of payment of the principal amount of any Term Loan, or any interest thereon, or any fees payable hereunder, or waive or excuse any such payment, or postpone the scheduled date of expiration of any Term Commitment, without the written consent of each Bank directly and adversely affected thereby (it being understood that any change to the defined terms used in computing financial covenants or ratios hereunder or any change or amendment in connection with the replacement of Term SOFR or any other Benchmark Replacement (including any change or amendment to Section 8.01) shall not constitute a postponement, waiver or excuse for purposes of this clause (c)), (d) change Section 2.10(b), 2.10(c) or 9.04 in a manner that would alter the pro rata sharing of payments required thereby, without the written consent of each Bank or (e) change any of the provisions of this Section 9.05 or the definition of “Required Banks” or any other provision hereof specifying the number or percentage of Banks required to waive, amend or modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Bank; provided, further, that (i) any provision of this Agreement or any other Credit Document may be amended by an agreement in writing entered into by the Company and the Administrative Agent to cure any ambiguity, error, omission, defect or inconsistency (as reasonably determined by the Company and the Administrative Agent) so long as, in each case, the Banks shall have received at least five Business Days’ prior written notice thereof and the Administrative Agent shall not have received, within five Business Days of the date of such notice to the Banks, a written notice from the Required Banks stating that the Required Banks object to such amendment and (ii) any Bank may exchange, continue or rollover all or a portion of its Term Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Company, the Administrative Agent and such Bank.
75
Section 9.06 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that, except as provided in Section 5.09, the Company may not assign or otherwise transfer any of its rights or obligations under this Agreement, without the prior written consent of each Bank.
(b) Any Bank may at any time grant to one or more banks or other institutions (other than to the Company, Affiliates of the Company, any Disqualified Institution or any Defaulting Bank) (each a “Participant”) participating interests in its Term Commitment or the Term Loans. In the event of any such grant by a Bank of a participating interest to a Participant, whether or not upon notice to the Company and the Administrative Agent, such Bank shall remain solely responsible for the performance of its obligations hereunder, and the Company and the Administrative Agent shall continue to deal solely and directly with such Bank in connection with such Bank’s rights and obligations under this Agreement. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Company hereunder including the right to approve any amendment, modification or waiver of any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement described in the first proviso of Section 9.05 without the consent of the Participant. The Company agrees that each Participant shall be entitled to the benefits of Article VIII with respect to its participating interest (subject to the requirements and limitations therein, including the requirements under Sections 8.05(f) and 8.05(g) (it being understood that the documentation required under Sections 8.05(f) and 8.05(g) shall be delivered to the participating Bank)) to the same extent as if it were a Bank and had acquired its interest by assignment pursuant to Section 9.06(c) or 9.06(d). An assignment or other transfer which is not permitted by Section 9.06(c) or 9.06(d) shall be given effect for purposes of this Agreement only to the extent of a participating interest granted in accordance with this Section 9.06(b). Each Bank that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Term Loans or other obligations under this Agreement (the “Participant Register”); provided that no Bank 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 Term Commitment, Term Loan or other obligations under any Credit Document) except to the extent that such disclosure is necessary to establish that such Term Commitment, Term Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Bank shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. Notwithstanding anything herein to the contrary, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
76
(c) Any Bank may at any time assign to one or more banks or other financial institutions (other than the Company, Affiliates of the Company, any Disqualified Institution or a Defaulting Bank, each an “Assignee”) all, or a proportionate part of all, of its rights and obligations under this Agreement, and such Assignee shall assume such rights and obligations, pursuant to an Assignment and Assumption executed by such Assignee and such transferor Bank, with (and subject to) the consent (which in each case shall not be unreasonably withheld, conditioned or delayed) of each of the Company and the Administrative Agent; provided that (i) if an Assignee is an Affiliate of any Bank or was a Bank immediately prior to such assignment or is an Approved Fund, no such consent of the Company shall be required and (ii) if an Assignee is an Affiliate of any Bank or was a Bank immediately prior to such assignment or is an Approved Fund, no such consent of the Administrative Agent shall be required; provided, further, that (x) the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof and (y) if an Event of Default under Section 6.01(a), 6.01(g) or 6.01(h) occurs and is continuing, no such consent of the Company shall be required; provided, further, that any such assignment (other than an assignment to another Bank or an Affiliate of any Bank or an assignment of the entire remaining amount of the transferor Bank’s Term Commitment or Term Loans) shall be in an amount that is at least $10,000,000 and increments of $1,000,000 in excess thereof (unless otherwise agreed by the Company and the Administrative Agent). Upon execution and delivery of such Assignment and Assumption and payment by such Assignee to such transferor Bank of an amount equal to the purchase price agreed between such transferor Bank and such Assignee, such Assignee shall be a Bank party to this Agreement and shall have all the rights and obligations of a Bank with principal amount of the Term Loans owing to it as set forth in such instrument of assumption, and the transferor Bank shall be released from its obligations hereunder to a corresponding extent, and no further consent or action by any party shall be required. In connection with any such assignment, the transferor Bank or Assignee shall pay to the Administrative Agent an administrative fee for processing such assignment in the amount of $3,500 unless waived by the Administrative Agent in its sole discretion. If the Assignee is not incorporated under the laws of the United States of America or a state thereof, it shall, prior to the first date on which interest or fees are payable hereunder for its account, deliver to the Company and the Administrative Agent certification as to exemption from deduction or withholding of any United States federal income Taxes in accordance with Section 8.05(f).
(d) Any Bank may at any time assign all or any portion of its rights under this Agreement to any Person to secure obligations of such Bank, including to one or more of the Federal Reserve Banks which comprise the Federal Reserve System or other central banks. No such assignment shall release the transferor Bank from its obligations hereunder.
(e) No Participant shall be entitled to receive any greater payment under Section 8.03, 8.05 or 8.06 than such Bank would have been entitled to receive with respect to the rights transferred, unless such transfer is made (i) with the Company’s prior written consent, (ii) by reason of the provisions of Section 8.02 or 8.07 requiring such Participant to designate a different Applicable Lending Office under certain circumstances or (iii) prior to a Change in Law giving rise to such greater payment.
Section 9.07 [Reserved].
Section 9.08 New York Law. This Agreement and the other Credit Documents and any claim, controversy or dispute (whether in tort, in contract at law or in equity or otherwise) based upon, arising out of or related to this Agreement and the other Credit Documents, shall be governed by and construed in accordance with the laws of the State of New York; provided that (a) the interpretation of the definition of “Company Material Adverse Effect” (as defined in the AEL Acquisition Agreement) used in this Agreement (and whether or not a “Company Material Adverse Effect” has occurred) and (b) the determination of the accuracy of any Acquisition Agreement Representations and whether as a result of any inaccuracy thereof Merger Sub has (or any of its subsidiaries or Affiliates has) the right to terminate its obligations under the AEL Acquisition Agreement or the right to elect not to consummate the AEL Merger (or otherwise not have an obligation to close), in each case shall be governed by, and construed in accordance with, the laws of the state of Iowa applicable to contracts executed in and to be performed entirely within that state, regardless of the laws that might otherwise govern under any applicable conflict of laws principles.
77
Section 9.09 Judicial Proceedings. (a) Submission to Jurisdiction. The Company hereby submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the borough of Manhattan), and any appellate court from any thereof, for purposes of all legal proceedings arising out of or relating to this Agreement or any other Credit Document or the transactions contemplated hereby, and the Company hereby irrevocably and unconditionally agrees that all claims in respect of any such proceeding may (and any such proceeding, claims, cross-claims or third-party claims brought against the Administrative Agent or any of its Related Parties may only) be heard and determined in such federal (to the extent permitted by law) or New York State court. The Company irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
(b) Service of Process. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01.
(c) No Limitation on Service or Suit. Nothing in any Credit Document shall affect the right of the Administrative Agent or any Bank to serve process in any other manner permitted by law or limit the right of the Administrative Agent or any Bank to bring any suit, action, proceeding, claim or counterclaim against the Company or its properties in the courts of any jurisdiction or jurisdictions.
Section 9.10 Counterparts; Integration; Headings; Electronic Execution. (a) This Agreement and any other Credit Document may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement and the Fee Letter constitute the entire agreement and understanding among the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof. 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.
(b) The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including Assignment and Assumptions, amendments, Notices of Borrowing, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent (provided that electronic signatures utilizing the DocuSign platform shall be deemed approved), or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
78
Section 9.11 Confidentiality. The Administrative Agent and each Bank agree that they will maintain the confidentiality of, and will not use for any purpose (other than exercising its rights and enforcing its remedies hereunder and under the other Credit Documents), any written or oral information provided by or on behalf of the Company (hereinafter collectively called “Confidential Information”), subject to the Administrative Agent’s and each Bank’s (a) obligation to disclose any such Confidential Information pursuant to a request or order under applicable laws and regulations or by a self-regulatory body or pursuant to a subpoena or other legal process, (b) right to disclose any such Confidential Information to its bank examiners, auditors, counsel and other professional advisors and to other Banks and to its subsidiaries and Affiliates and the subsidiaries and Affiliates of its holding company, provided that the Administrative Agent or such Bank, as the case may be, shall cause each such subsidiary or Affiliate to maintain the Confidential Information on the same terms as the terms provided herein, (c) right to disclose any such Confidential Information in connection with any litigation or dispute involving the Banks and the Company or any of its Subsidiaries and Affiliates, (d) right to provide such information to (i) participants, prospective participants, prospective assignees or assignees pursuant to Section 9.06 or (with the consent of the Company (such consent not to be unreasonably withheld)) to its agents if prior thereto such participant, prospective participant, prospective assignee or agent agrees in writing to maintain the confidentiality of such information on terms substantially similar to those of this Section 9.11 as if it were a “Bank” party hereto or (ii) with the consent of the Company (except as otherwise permitted under clause (b) above), any actual or prospective counterparty (or its advisors) to any swap, derivative or securitization transaction relating to the Company and its obligations or to any actual or prospective credit insurance provider relating to the Company and its obligations if prior thereto such counterparty or credit insurance provider agrees in writing to maintain the confidentiality of such information on terms substantially similar to those of this Section 9.11 as if it were a “Bank” party hereto, (e) right to disclose any such Confidential Information in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (f) with the prior written consent of the Company, right to disclose any such Confidential Information on a confidential basis to any rating agency in connection with rating the Company or its Subsidiaries or this facility and (g) right to provide such information with the Company’s prior written consent. Notwithstanding the foregoing, any such information supplied to a Bank, participant, prospective participant or prospective assignee under this Agreement shall cease to be Confidential Information if it is or becomes known to such Person by other than unauthorized disclosure, or if it is, at the time of disclosure, or becomes a matter of public knowledge. In addition, in consultation with the Company, the Administrative Agent and the Banks may disclose the existence of this Agreement and information about the Closing Date and the size, type and purpose of the facilities contemplated by this Agreement to market data collectors and other service providers to the lending industry and service providers to the Administrative Agent and the Banks in connection with the administration of this Agreement, the other Credit Documents and the Term Commitments.
Section 9.12 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES 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 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 9.12.
79
Section 9.13 Certain Notices. Each Bank hereby notifies the Company that pursuant to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation, such Bank may be required to obtain, verify and record information that identifies the Company, which information includes the name and address of the Company and other information that will allow such Bank to identify the Company in accordance with the PATRIOT Act and the Beneficial Ownership Regulation.
Section 9.14 No Fiduciary Duty. The Administrative Agent, each Bank and their Affiliates (collectively, solely for purposes of this Section 9.14, the “Banks”), may have economic interests that conflict with those of the Company and its stockholders and/or affiliates. The Company agrees that nothing in the Credit Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Bank, 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 (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Banks, on the one hand, and the Company, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Bank has assumed an advisory or fiduciary responsibility in favor of the Company, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Bank 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 Bank is acting solely as principal and not as the agent or fiduciary of the Company, its management, stockholders or creditors or any other Person. The Company acknowledges and agrees that the Company 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 Bank has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
Section 9.15 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of an applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b) the effects of any Bail-In Action on any such liability, including, if applicable:
(i) a reduction in full or in part or cancellation of any such liability;
80
(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or
(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of an applicable Resolution Authority.
Section 9.16 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Bank and each of its Affiliates is 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 obligations at any time owing by such Bank or Affiliate to or for the credit or the account of the Company against any of and all the obligations of the Company at the time existing under this Agreement held by such Bank, irrespective of whether or not such Bank shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Bank under this Section 9.16 are in addition to other rights and remedies (including any other rights of setoff) which such Bank may have. Each Bank agrees to notify the Administrative Agent and the Company promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
[Signature Pages Follow]
81
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| AMERICAN EQUITY INVESTMENT LIFE HOLDING COMPANY, as the Company | |||
| by | |||
| /s/ Timothy A. Walsh | |||
| Name: | Timothy A. Walsh | ||
| Title: | President and Chief Executive Officer | ||
| Address for Notices: | |
| American Equity Investment Life Holding Company | |
| c/o American National Group, LLC | |
| 1 Moody Plaza | |
| Galveston, TX 77550 | |
| Attention: Garret Williams | |
| Email: Garrett.Williams@AmericanNational.com |
[Signature Page to Term Loan Agreement]
| BANK OF MONTREAL, as Administrative Agent | |||
| by | |||
| /s/ Fiona Lu | |||
| Name: | Fiona Lu | ||
| Title: | Vice President, Corporate Banking | ||
| Address for Notices: | |
| Bank of Montreal, as Administrative Agent | |
| 250 Yonge St., 11th Floor, | |
| Toronto, ON M5B 2L7 | |
| Attention: Joshua Shanker | |
| Email: BMOCCLO.AgencyToronto@bmo.com |
[Signature Page to Term Loan Agreement]
| BANK OF MONTREAL, as a Bank | |||
| by | |||
| /s/ Fiona Lu | |||
| Name: | Fiona Lu | ||
| Title: | Vice President, Corporate Banking | ||
[Signature Page to Term Loan Agreement]
| Royal Bank of Canada, as a Bank | |||
| by | |||
| /s/ Keving Bemben | |||
| Name: | Kevin Bemben | ||
| Title: | Authorized Signatory | ||
[Signature Page to Term Loan Agreement]
| BNP PARIBAS, as a Bank | |||
| by | |||
| /s/ Nicole Rodriguez | |||
| Name: | Nicole Rodriguez | ||
| Title: | Director | ||
| by | |||
| /s/ Nicolas Doche | |||
| Name: | Nicolas Doche | ||
| Title: | Director | ||
[Signature Page to Term Loan Agreement]
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK BRANCH, as a Bank | |||
| by | |||
| /s/ Edward Turowski | |||
| Name: | Edward Turowski | ||
| Title: | Managing Director | ||
[Signature Page to Term Loan Agreement]
| HSBC BANK USA, NA, as a Bank | |||
| by | |||
| /s/ Michael Albanese | |||
| Name: | Michael Albanese | ||
| Title: | Managing Director, FIG | ||
[Signature Page to Term Loan Agreement]
| MIZUHO BANK, LTD., CANADA BRANCH, as a Bank | |||
| by | |||
| /s/ James Campbell | |||
| Name: | James Campbell | ||
| Title: | Director | ||
[Signature Page to Term Loan Agreement]
| THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as a Bank | |||
| by | |||
| /s/ Betty Chang | |||
| Name: | Betty Chang | ||
| Title: | Authorized Signatory | ||
[Signature Page to Term Loan Agreement]
| U.S. BANK NATIONAL ASSOCIATION, as a Bank | |||
| by | |||
| /s/ Callen M. Strunk | |||
| Name: | Callen M. Strunk | ||
| Title: | Vice President | ||
[Signature Page to Term Loan Agreement]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as a Bank | |||
| by | |||
| /s/ Jason Hafener | |||
| Name: | Jason Hafener | ||
| Title: | Managing Director | ||
[Signature Page to Term Loan Agreement]
| BARCLAYS BANK PLC, as a Bank | |||
| by | |||
| /s/ Evan Moriarty | |||
| Name: | Evan Moriarty | ||
| Title: | Authorized Signatory | ||
[Signature Page to Term Loan Agreement]
| Citibank, N.A., as a Bank | |||
| by | |||
| /s/ Robert Chesley | |||
| Name: | Robert Chesley | ||
| Title: | Vice President & Managing Director | ||
[Signature Page to Term Loan Agreement]
| Credit Agricole Corporate and Investment Bank, as a Bank | |||
| by | |||
| /s/ Andrew Sidford | |||
| Name: | Andrew Sidford | ||
| Title: | Managing Director | ||
| by | |||
| /s/ Gordon Yip | |||
| Name: | Gordon Yip | ||
| Title: | Director | ||
[Signature Page to Term Loan Agreement]
| PNC Bank, National Association, as a Bank | |||
| by | |||
| /s/ Amanda Faloon | |||
| Name: | Amanda Faloon | ||
| Title: | Vice President | ||
[Signature Page to Term Loan Agreement]