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Validus Holdings - Five-year Secured Letter of Credit Facility Agreement
EXHIBIT 10.5
EXECUTION COPY
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FIVE-YEAR SECURED LETTER OF CREDIT FACILITY AGREEMENT
dated as of
March 12, 2007
among
VALIDUS HOLDINGS, LTD.,
VALIDUS REINSURANCE, LTD.,
VARIOUS DESIGNATED SUBSIDIARY ACCOUNT PARTIES,
The Lenders Party Hereto,
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Sole Administrative Agent and Sole Issuing Agent,
DEUTSCHE BANK AG NEW YORK BRANCH,
as Sole Syndication Agent,
and
ING BANK N.V., LONDON BRANCH,
CALYON,
THE BANK OF NEW YORK
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agents
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J.P. MORGAN SECURITIES INC.,
and
DEUTSCHE BANK SECURITIES INC.,
as Joint Lead Arrangers and Joint Bookrunners
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms............................................. 1 SECTION 1.02. Terms Generally........................................... 21 SECTION 1.03. Accounting Terms; GAAP.................................... 21
ARTICLE II
Letters of Credit
SECTION 2.01. Several Letters of Credit................................. 21 SECTION 2.02. Fronted Letters of Credit................................. 22 SECTION 2.03. Conditions to the Issuance of all Letters of Credit....... 25 SECTION 2.04. Letter of Credit Requests................................. 26 SECTION 2.05. Agreement to Repay Letter of Credit Drawings.............. 27 SECTION 2.06. Increased Costs........................................... 28 SECTION 2.07. Letter of Credit Expiration and Extensions................ 28 SECTION 2.08. Changes to Stated Amount.................................. 29 SECTION 2.09. Termination and Reduction of Commitments.................. 29 SECTION 2.10. Prepayment; Additional Borrowing Base Requirements........ 30 SECTION 2.11. Fees...................................................... 31 SECTION 2.12. Taxes..................................................... 32 SECTION 2.13. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.................................................. 33 SECTION 2.14. Mitigation Obligations; Replacement of Lenders............ 34 SECTION 2.15. Designated Subsidiary Account Parties..................... 36 SECTION 2.16. Additional Commitments.................................... 36
ARTICLE III
Representations and Warranties
SECTION 3.01. Corporate Status.......................................... 41 SECTION 3.02. Corporate Power and Authority............................. 41 SECTION 3.03. No Contravention of Agreements or Organizational
Documents................................................. 41 SECTION 3.04. Litigation and Environmental Matters...................... 42 SECTION 3.05. Use of Letters of Credit.................................. 42 SECTION 3.06. Approvals................................................. 42 SECTION 3.07. Investment Company Act.................................... 42 SECTION 3.08. True and Complete Disclosure; Projections and
Assumptions............................................... 42 SECTION 3.09. Financial Condition....................................... 43 SECTION 3.10. Tax Returns and Payments.................................. 43 SECTION 3.11. Compliance with ERISA..................................... 43 SECTION 3.12. Subsidiaries.............................................. 44 SECTION 3.13. Capitalization............................................ 44
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SECTION 3.14. Indebtedness.............................................. 44 SECTION 3.15. Compliance with Statutes and Agreements................... 44 SECTION 3.16. Insurance Licenses........................................ 45 SECTION 3.17. Insurance Business........................................ 45 SECTION 3.18. Security Documents........................................ 45 SECTION 3.19. Properties; Liens; and Insurance.......................... 46 SECTION 3.20. Solvency.................................................. 46 SECTION 3.21. Certain Insurance Regulations, Orders, Consents, Etc...... 46
ARTICLE IV
Conditions
SECTION 4.01. Effective Date............................................ 46 SECTION 4.02. Each Credit Event......................................... 49
ARTICLE V
Affirmative Covenants
SECTION 5.01. Information Covenants..................................... 49 SECTION 5.02. Books, Records and Inspections............................ 52 SECTION 5.03. Insurance................................................. 53 SECTION 5.04. Payment of Taxes and other Obligations.................... 53 SECTION 5.05. Maintenance of Existence; Conduct of Business............. 53 SECTION 5.06. Compliance with Statutes, etc............................. 53 SECTION 5.07. ERISA..................................................... 54 SECTION 5.08. Maintenance of Property................................... 55 SECTION 5.09. Maintenance of Licenses and Permits....................... 55 SECTION 5.10. Borrowing Base Requirement................................ 55 SECTION 5.11. Collateral; Further Assurances............................ 55
ARTICLE VI
Negative Covenants
SECTION 6.01. Changes in Business or Organizational Documents........... 55 SECTION 6.02. Consolidations, Mergers and Sales of Assets............... 56 SECTION 6.03. Liens..................................................... 56 SECTION 6.04. Indebtedness.............................................. 59 SECTION 6.05. Sale and Lease-Back Transactions.......................... 59 SECTION 6.06. Issuance of Stock......................................... 60 SECTION 6.07. Dissolution............................................... 60 SECTION 6.08. Restricted Payments....................................... 60 SECTION 6.09. Transactions with Affiliates.............................. 60 SECTION 6.10. Maximum Leverage Ratio.................................... 61 SECTION 6.11. Minimum Consolidated Net Worth............................ 61 SECTION 6.12. Limitation on Certain Restrictions on Subsidiaries........ 61 SECTION 6.13. Private Act............................................... 61 SECTION 6.14. Claims Paying Ratings..................................... 62
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SECTION 6.15. End of Fiscal Years; Fiscal Quarters...................... 62 SECTION 6.16. Investments, Loans, Advances and Guarantees............... 62
ARTICLE VII
Events of Default
SECTION 7.01. Payments.................................................. 62 SECTION 7.02. Representations, etc...................................... 63 SECTION 7.03. Covenants................................................. 63 SECTION 7.04. Default under other Agreements............................ 63 SECTION 7.05. Bankruptcy, etc........................................... 63 SECTION 7.06. ERISA..................................................... 64 SECTION 7.07. Judgments................................................. 64 SECTION 7.08. Insurance Licenses........................................ 64 SECTION 7.09. Change of Control......................................... 64 SECTION 7.10. Security Documents........................................ 64 SECTION 7.11. Company Guaranty.......................................... 65
ARTICLE VIII
The Agents
SECTION 8.01. Appointment............................................... 66 SECTION 8.02. Agents in their Individual Capacities..................... 66 SECTION 8.03. Exculpatory Provisions.................................... 66 SECTION 8.04. Reliance.................................................. 66 SECTION 8.05. Delegation of Duties...................................... 67 SECTION 8.06. Resignation............................................... 67 SECTION 8.07. Non-Reliance.............................................. 67 SECTION 8.08. Syndication Agent, Documentation Agents and Joint Lead
Arrangers and Joint Bookrunners........................... 67
ARTICLE IX
Company Guaranty
SECTION 9.01. The Company Guaranty...................................... 68 SECTION 9.02. Bankruptcy................................................ 68 SECTION 9.03. Nature of Liability....................................... 68 SECTION 9.04. Independent Obligation.................................... 69 SECTION 9.05. Authorization............................................. 69 SECTION 9.06. Reliance.................................................. 70 SECTION 9.07. Subordination............................................. 70 SECTION 9.08. Waiver.................................................... 70
ARTICLE X
Miscellaneous
SECTION 10.01. Notices................................................... 71 SECTION 10.02. Waivers; Amendments....................................... 72
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SECTION 10.03. Expenses; Indemnity; Damage Waiver........................ 73 SECTION 10.04. Successors and Assigns.................................... 74 SECTION 10.05. Survival.................................................. 77 SECTION 10.06. Counterparts; Integration; Effectiveness.................. 78 SECTION 10.07. Severability.............................................. 78 SECTION 10.08. Right of Setoff........................................... 78 SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process................................................... 78 SECTION 10.10. Waiver of Jury Trial...................................... 79 SECTION 10.11. Headings.................................................. 80 SECTION 10.12. Confidentiality........................................... 80 SECTION 10.13. Interest Rate Limitation.................................. 80 SECTION 10.14. USA Patriot Act........................................... 81 SECTION 10.15. Termination of Existing LC Facility....................... 81
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SCHEDULES:
Commitment Schedule Schedule 1.01 -- Permitted Investors Schedule 2.15 -- Designated Subsidiary Account Parties Schedule 2.17 -- Existing Secured Fronted Letters of Credit Schedule 2.18 -- Existing Secured Several Letters of Credit Schedule 3.12 -- Subsidiaries Schedule 3.13 -- Capitalization Schedule 3.14 -- Existing Indebtedness Schedule 3.16 -- Insurance Licenses Schedule 6.03 -- Existing Liens Schedule 6.09 -- Existing Affiliate Transactions Schedule 6.12 -- Existing Intercompany Agreements and Arrangements Schedule 6.16 -- Existing Investments
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption Exhibit B -- Form of Borrowing Base Certificate Exhibit C -- Form of DSAP Assumption Agreement Exhibit D -- Form of Security Agreement Exhibit E -- Form of Additional Commitment Agreement Exhibit F -- Form of Officer's Certificate Exhibit G -- Form of Letter of Credit Request Exhibit H-1 -- Opinion of Account Parties' Special New York Counsel Exhibit H-2 -- Opinion of Account Parties' Special Bermuda Counsel Exhibit I -- Account Control Agreement Exhibit J -- Additional LC Documentation
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FIVE-YEAR SECURED LETTER OF CREDIT FACILITY AGREEMENT dated as of March 12, 2007 among VALIDUS HOLDINGS, LTD., a holding company organized under the laws of Bermuda (the "Company"), VALIDUS REINSURANCE, LTD., an insurance and reinsurance company organized under the laws of Bermuda and a wholly-owned subsidiary of the Company ("Validus Re"), the other Designated Subsidiary Account Parties (as hereinafter defined) from time to time party hereto, the lenders from time to time party hereto (each, a "Lender" and, collectively, the "Lenders"), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, as Administrative Agent and Issuing Agent, Deutsche Bank AG New York Branch, as Syndication Agent, and ING Bank N.V., London Branch, Calyon, The Bank of New York and Wachovia Bank, National Association, as Documentation Agents. Unless otherwise defined herein, all capitalized terms used herein and defined in Section 1.01 are used herein as so defined.
The parties hereto hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
"Account Control Agreement" means the account control agreement, attached as Exhibit I hereto, dated as of the date of this Agreement, among the Custodian, the Collateral Agent and the Grantors (as defined in the Security Agreement) from time to time party thereto, as amended, restated, modified and/or supplemented and as in effect from time to time.
"Account Parties" means the Company and each Designated Subsidiary Account Party.
"Additional Commitment" means, for each Additional Commitment Lender, any commitment provided by such Additional Commitment Lender pursuant to Section 2.16, in such amount as agreed to by such Additional Commitment Lender in the respective Additional Commitment Agreement; provided that on the Additional Commitment Date upon which an Additional Commitment of any Additional Commitment Lender becomes effective, such Additional Commitment of such Additional Commitment Lender shall (x) in the case of an existing Lender, be added to (and thereafter become a part of) the existing Commitment of such existing Lender for all purposes of this Agreement as contemplated by Section 2.16 and (y) in the case of a new Lender, be converted to a Commitment and become a Commitment for all purposes of this Agreement as contemplated by Section 2.16.
"Additional Commitment Agreement" means an Additional Commitment Agreement substantially in the form of Exhibit E (appropriately completed) or such other form reasonably acceptable to the Administrative Agent.
"Additional Commitment Date" means each date upon which an Additional Commitment under an Additional Commitment Agreement becomes effective as provided in Section 2.16.
"Additional Commitment Lender" has the meaning provided in Section 2.16(b).
"Administrative Agent" means JPMorgan Chase Bank, National Association (and each person appointed as a successor thereto pursuant to Article VIII), in its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a form supplied by the Administrative Agent.
"Advance Rate" means, for any category of Cash or obligation or investment specified below in the column entitled "Cash and Eligible Securities" (other than Cash, the "Eligible Securities"), the percentage set forth opposite such category of Cash or Eligible Securities below in the column entitled "Advance Rate" and, in each case, subject to the original term to maturity criteria set forth therein:
Cash and Eligible Securities: Advance Rate:
----------------------------- ------------- Cash: 100%.
U.S. Dollars, including time deposits, certificates of deposit and money market deposits held at JPMorgan Chase Bank, National Association or that are subject to a first priority security interest of the Collateral Agent.
U.S. Government Securities: With maturities of (x) two
years or less from the Securities issued or directly and fully guaranteed date of acquisition, 95%, or insured by the United States or any agency or (y) three to ten years instrumentality thereof (provided that the full from the date of faith and credit of the United States is pledged in acquisition, 90% and (z) support thereof), including assets issued by the more than 10 years from Federal National Mortgage Association, the Federal the date of acquisition, Home Loan Mortgage Corporation, Federal Home Loan 85%. Bank or the Government National Mortgage Association.
Investment Grade Municipal Bonds: 85%.
Municipal Bonds rated at least (i) A by S&P and (ii) A2 by Moody's and maturing within five years from the date of acquisition.
Investment Grade Non-Convertible U.S. Corporate With maturities of (x) two Bonds Level I: years or less from the
date of acquisition, 90% Non-convertible corporate bonds issued by any and (y) three to ten years entity organized in the United States which are from the date of "publicly traded" on a nationally recognized acquisition, 85%. exchange, eligible to be settled by DTC and rated at least (i) AA- by S&P and (ii) Aa3 by Moody's.
Investment Grade Non-Convertible U.S. Corporate With maturities of (x) two Bonds Level II: years or less from the
date of acquisition, 85% Non-convertible corporate bonds issued by any and (y) three to ten years entity organized in the United States which are from the date of "publicly traded" on a nationally recognized acquisition, 80%. exchange, eligible to be settled by DTC and rated at least (i) A- by S&P and (ii) A3 by Moody's, but no higher than (x) A+ from S&P and (y) A1 from Moody's.
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Cash and Eligible Securities: Advance Rate:
----------------------------- ------------- Commercial Paper: 90%.
Commercial paper issued by any entity organized in the United States rated at least (i) A-1 or the equivalent thereof by S&P and (ii) P-1 or the equivalent thereof by Moody's and maturing not more than one year after the date of acquisition.
Other Securities: 0.0%.
All other investments, obligations or securities.
Notwithstanding the foregoing, (A) the value of Eligible Securities at any time shall be determined based on the Borrowing Base Report (as defined in the Security Agreement) then most recently prepared by the Collateral Agent and (B) if any single corporate issuer (including the Affiliates thereof but, for the avoidance of doubt, excluding any Eligible Securities categorized in the table above under the heading "U.S. Government Securities" or "Investment Grade Municipal Bonds") represents more than 10% of the aggregate value of all Cash and Eligible Securities of the aggregate amount of all Borrowing Bases, the excess over 10% shall be excluded (with such exclusion being allocated in equal parts to each Borrowing Base at such time).
"Affiliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
"Agents" means, collectively, the Administrative Agent, the Syndication Agent, the Issuing Agent and the Collateral Agent.
"Agreement" means this Five-Year Secured Letter of Credit Facility Agreement, as modified, supplemented, amended, restated (including any amendment and restatement hereof), extended or renewed from time to time.
"Alternate Base Rate" means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Commitment Fee Rate" means 0.08% per annum.
"Applicable Insurance Regulatory Authority" means, when used with respect to any Regulated Insurance Company, (x) the insurance department or similar administrative authority or agency located in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is domiciled or (y) to the extent asserting regulatory jurisdiction over such Regulated Insurance Company, the insurance department, authority or agency in each state or jurisdiction (foreign or domestic) in which such Regulated Insurance Company is licensed, and shall include any Federal or national insurance regulatory department, authority or
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agency that may be created and that asserts insurance regulatory jurisdiction over such Regulated Insurance Company.
"Applicable Letter of Credit Fee Rate" means 0.25% per annum.
"Applicable Percentage" means, with respect to any Lender, the percentage of the Total Commitment represented by such Lender's Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.
"Approved Fund" has the meaning provided in Section 10.04(b).
"Assignment and Assumption" means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.
"Authorized Officer" means, as to any Person, the Chief Executive Officer, the President, the Chief Operating Officer, any Vice President, the Secretary, or the Chief Financial Officer or Finance Director of such Person or any other officer of such Person duly authorized by such Person to act on behalf of such Person hereunder and under the other Credit Documents.
"Bankruptcy Code" has the meaning provided in Section 7.05.
"Bermuda Companies Law" means the Companies Act 1981 of Bermuda and other relevant Bermuda law.
"Borrowing Base" means, at any time, and in respect of each Account Party, the aggregate amount of Cash and Eligible Securities held in the Collateral Accounts of such Account Party under the Security Agreement at such time multiplied in each case by the respective Advance Rates for Cash and such Eligible Securities; provided that all Cash and Eligible Securities in respect of any Borrowing Base shall only be included in such Borrowing Base to the extent the same are subject to a first priority perfected security interest in favor of the Collateral Agent pursuant to the Security Documents.
"Borrowing Base Certificate" means a Borrowing Base Certificate substantially in the form of Exhibit B hereto or such other form reasonably acceptable to the Administrative Agent (it being agreed that a Borrowing Base Certificate substantially in the form of the Borrowing Base Certificate delivered under the Existing LC Facility on February 22, 2007 is acceptable to the Administrative Agent).
"Business Day" means any day excluding Saturday, Sunday and any day which shall be in the City of New York a legal holiday or a day on which banking institutions are authorized by law or other governmental actions to close.
"Capital Lease Obligations" of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be
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classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
"Capital Markets Product" means, as to any Person, any security, commodity, derivative transaction or other financial or similar product purchased, sold or entered into by such Person for the purpose of a third-party undertaking or assuming one or more risks otherwise assumed by such Person or entered into by such Person for the purpose of managing one or more risks otherwise assumed by such Person or other agreements or arrangements entered into by such Person designed to transfer credit risk from one party to another, including (i) any structured insurance product, catastrophe bond, rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, commodity hedge, equity or equity index swap, equity or equity index option, bond option, interest rate option or hedge, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or swap transaction, credit protection transaction, credit swap, credit default swap (including single default, single-name, basket and first-to-default swaps), credit default option, equity default swap, total return swap, credit-linked notes, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sellback transaction, securities lending transaction, weather index transaction, emissions allowance transaction, or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) any transaction which is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets, (iii) any combination of the transactions referred to in clauses (i) and (ii) above and (iv) any master agreement relating to any of the transactions referred to in clauses (i), (ii) or (iii) above.
"Cash" means the category of "Cash" described in the definition of Advance Rate.
"Cash Equivalents" means, as to any Person, (i) securities issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof (provided that the full faith and credit of the United States is pledged in support thereof) having maturities of not more than one year from the date of acquisition, (ii) time deposits and certificates of deposit of any commercial bank having, or which is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any State thereof, the District of Columbia or any foreign jurisdiction having, capital, surplus and undivided profits aggregating in excess of $200,000,000, with maturities of not more than one year from the date of acquisition by such Person, (iii) repurchase obligations with a term of not more than 90 days for underlying securities of the types described in clause (i) above entered into with any bank meeting the qualifications specified in clause (ii) above, (iv) commercial paper rated at least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody's and in each case maturing not more than one year after the date of acquisition by such Person, and (v) investments in "money market funds" within the meaning of Rule 2a-7 of the Investment Company Act of 1940, as amended, substantially all of whose assets are comprised of securities of the types described in clauses (i) through (iv) above.
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"Change in Law" means (a) the adoption or effectiveness of any law, rule or regulation, order, guideline or request or any change therein after the date of this Agreement, (b) any change adopted or effective in the interpretation, administration or application of any law, rule or regulation, order, guideline or request or any change therein by any Governmental Authority, central bank or comparable agency after the date of this Agreement or (c) compliance by any Lender or the Issuing Agent (or, for purposes of Section 2.06, by any lending office of such Lender or by such Lender's or the Issuing Agent's holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority, central bank or comparable agency made or issued after the date of this Agreement.
"Change of Control" means (a) Validus Re or any other Account Party ceasing to be a Wholly-Owned Subsidiary of the Company, (b) prior to an IPO, the failure by Permitted Investors to collectively own, directly or indirectly, beneficially and of record, Equity Interests in the Company representing at least a majority of each of the aggregate ordinary voting power and the aggregate equity value represented by the issued and outstanding Equity Interests in the Company, (c) after an IPO, the acquisition of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Securities Exchange Act of 1934, as amended, and the rules of the SEC thereunder as in effect on the date hereof) other than Permitted Investors, of Equity Interests representing more than 25% of either the aggregate ordinary voting power or the aggregate equity value represented by the issued and outstanding Equity Interests in the Company, (d) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Company by Persons who were neither (i) nominated by the board of directors of the Company or Permitted Investors nor (ii) appointed by directors so nominated, or (e) the occurrence of a "Change of Control" (or similar event, however denominated), as defined in any indenture, agreement in respect of Indebtedness or other material agreement of the Company or any Subsidiary or any certificate of designations (or other provision of the organizational documents of the Company) relating to, or any other agreement governing the rights of the holders of, any Equity Interests in the Company or any Subsidiary, in each case which would give rise to liabilities or obligations of the Company or any Subsidiary in an amount equal to or greater than $50,000,000.
"Charges" has the meaning provided in Section 10.13.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Collateral" has the meaning provided in the Security Agreement.
"Collateral Account" has the meaning provided in the Security Agreement.
"Collateral Agent" means The Bank of New York (and each person appointed as a successor thereto pursuant to Article VIII), in its capacity as collateral agent hereunder and under the Security Agreement and the Account Control Agreement.
"Commitment" means, with respect to each Lender, at any time, the amount set forth opposite such Lender's name on the Commitment Schedule, as the same may be reduced pursuant to Sections 2.09, 2.14 or 10.04 or increased pursuant to Section 2.16. As of the Effective Date, the aggregate Commitments of all Lenders hereunder is $500,000,000.
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"Commitment Expiration Date" means March 12, 2012.
"Commitment Schedule" means the Schedule attached hereto identified as such.
"Company" means Validus Holdings, Ltd., a holding company organized under the laws of Bermuda.
"Company Guaranty" means the guaranty of the Company provided in Article IX.
"Consolidated Indebtedness" means, as of any date of determination, all Indebtedness (other than (a) Indebtedness described in clause (i) of the definition thereof that does not constitute bonds, debentures, notes or similar instruments that are generally recourse with respect to the Company and its Subsidiaries, (b) obligations in respect of undrawn letters of credit and (c) Indebtedness that is non-recourse with respect to the Company and its Subsidiaries) of the Company and its Subsidiaries. For the avoidance of doubt, "Consolidated Indebtedness" shall not include contingent obligations of the Company or any Subsidiary as an account party or applicant in respect of any letter of credit or Guarantee unless such letter of credit or Guarantee supports an obligation that constitutes Indebtedness.
"Consolidated Net Worth" means, as of any date of determination, the Net Worth of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP after appropriate deduction for any minority interests in Subsidiaries including for the avoidance of doubt the aggregate principal amount of all outstanding preferred (including without limitation trust preferred) or preference securities or Hybrid Capital of the Company and its Subsidiaries, provided that the aggregate outstanding amount of such preferred or preference securities or Hybrid Capital of the Company and its Subsidiaries shall only be included in Consolidated Net Worth to the extent such amount would be included in a determination of the consolidated net worth of the Company and its Subsidiaries under the applicable procedures and guidelines of S&P as of the date hereof.
"Consolidated Total Capital" means, as of any date of determination, the sum of (i) Consolidated Indebtedness and (ii) Consolidated Net Worth at such time.
"Control" means, with respect to any Person, the possession, directly or indirectly, of the power (i) to vote 10% or more of the voting power of the securities having ordinary voting power for the election of directors of such Person or (ii) to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Documents" means this Agreement and each Security Document.
"Credit Event" means the issuance of any Letter of Credit (or any increase of the Stated Amount thereof).
"Custodian" means The Bank of New York, in its capacity as custodian under the Account Control Agreement.
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"Default" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
"Designated Subsidiary Account Party" means Validus Re and each Wholly-Owned Subsidiary of the Company set forth on Schedule 2.15 and each Wholly-Owned Subsidiary of the Company which is designated as a Designated Subsidiary Account Party in accordance with Section 2.15.
"Dispositions" has the meaning provided in Section 6.02.
"Dividends" has the meaning provided in Section 6.08.
"Documentation Agent" means each of ING Bank N.V., London Branch, Calyon, The Bank of New York and Wachovia Bank, National Association, in their capacities as Documentation Agents.
"Dollars" or "$" refers to lawful money of the United States of America.
"DSAP Assumption Agreement" means an assumption agreement in the form of Exhibit C or such other form reasonably acceptable to the Administrative Agent.
"DTC" means the Depository Trust Company.
"Effective Date" has the meaning provided in Section 4.01.
"Eligible Person" means and includes any commercial bank, insurance company, finance company, financial institution, fund that invests in loans or any other "accredited investor" (as defined in Regulation D of the Securities A...
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