CREDITOR AGREEMENT
CREDITOR AGREEMENT (the "Agreement"), dated as of [-], between
American Equity Investment Life Holding Company (the "Company") and [-] (the
"Creditor").
WHEREAS, [describe financing agreements ("Financing Agreements") with
all creditors (collectively, the "Creditors")];
WHEREAS, the Company proposes to issue up to $[-] aggregate principal
amount of its [-]% Junior Subordinated Debentures (the "Debentures") to its
affiliate, American Equity Capital Trust III (the "Trust") in exchange for [-]
common securities of the Trust;
WHEREAS, the Trust proposes to issue up to [-] of its [-]% Trust
Preferred Securities (with a liquidation amount of $25 per preferred security)
(the "Trust Preferred Securities") to the public in a registered public offering
(the "Offering");
WHEREAS, the Trust proposes to use the proceeds of the Offering to
purchase [-] aggregate principal amount of the Debentures;
WHEREAS, pursuant to the Offering, the Company will be required to
place zero coupon securities issued by the United States government or agency
thereof with an aggregate face amount of $[-] and with maturity dates on or
before the maturity date of the Debentures (the "Zero Coupon Securities") in an
escrow account, which Zero Coupon Securities (or proceeds therefrom) will be
used to secure the Company's obligations to pay amounts due on the Debentures
at maturity of the Debentures (the "Escrow Account");
WHEREAS, in connection with the Offering, the Company has requested,
among other things, that the Creditors:
(a) waive any default under, or violation of, the Financing
Agreements which may arise as a result of the Company's issuance of the
Debentures, pursuant to the terms and conditions of a Registration Statement on
Form S_1, a copy of which is attached as Exhibit A hereto (the "Registration
Statement");
(b) acknowledge and agree that the Escrow Account does not
constitute Collateral as defined pursuant to the terms of the Financing
Agreements; and
(c) waive and release any and all claims and interests, if any,
that the Creditors may have with respect to the Escrow Account as creditors or
stockholders of the Company or any other entity, whether secured, general
unsecured or otherwise.
WHEREAS, in connection herewith, the other Creditors are entering into
agreements substantially similar to this agreement; and
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
Section 1. ACKNOWLEDGMENT.
1.1 The Creditor hereby acknowledges and represents that it owns the
principal amount of [debt instrument] set forth opposite its name on the
signature page hereto and that it has not assigned or otherwise transferred any
portion of its rights or obligations under the Financing Agreements to any other
person or entity.
1.2 Notwithstanding any provision to the contrary contained in the
Financing Agreements, the Creditor hereby expressly acknowledges and agrees that
the Escrow Account does not constitute Collateral (as defined in the Financing
Agreements) pursuant to the terms of such agreements.
Section 2. ESCROW ACCOUNT WAIVER AND RELEASE.
2.1 Notwithstanding any provision to the contrary contained in the
Financing Agreements, the Creditor hereby absolutely, unconditionally and
irrevocably relinquishes, waives, disclaims, releases and renders ineffective
any and all rights, powers and interests and all manner of claims, whether now
existing or arising in the future, which it may have as a creditor of the
Company or any other entity, whether secured, general unsecured or otherwise, or
as a stockholder of the Company or any other entity with respect to the Escrow
Account.
2.2 In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, arrangement, reorganization or
other similar case or proceeding in connection therewith under Title 11 of the
United States Code, as hereafter amended, or under any other applicable
bankruptcy, insolvency or other similar law, now or hereafter in effect, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
relative to the Company, or to its assets, (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshaling of assets and liabilities of the Company, then
the Creditor agrees that it shall not be entitled to any payment or distribution
of any kind or character of assets of the Escrow Account, whether in cash,
property or securities, by setoff or otherwise.
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Section 3. FINANCING AGREEMENT CONSENT AND WAIVER.
3.1 The Creditor hereby consents to and waives any default under, or
violation of the covenants under the Financing Agreements, arising as a result
of, or in connection with, the issuance of up to $[-] aggregate principal amount
of Debentures, the creation and use of the Escrow Account or the transactions
contemplated in the Registration Statement.
Section 4. MISCELLANEOUS.
4.1 ADEQUATE REMEDIES. Breach of this Agreement by any of the
parties hereto will result in damage to the other parties for which money will
not be an adequate remedy. Each party shall be entitled, in addition to monetary
damages or other relief at law, to specific performance and injunctive or other
equitable relief as a remedy for any such breach. The parties each agree to
waive (a) any requirement for the securing or posting of a bond in connection
with such remedy and (b) any claim that the provisions of 11 U.S.C. Section 105
or 362 in any manner stay any right to seek forthwith any available remedy for
such breach.
4.2 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Iowa.
4.3 AGREEMENT CONTROLLING - ENTIRE AGREEMENT. This Agreement
contains the entire agreement between the parties with respect to the subject
matter contained herein and may not be altered, modified or amended in any
respect, nor may any right, power or privilege of any party hereunder and
thereunder be waived or released or discharged, except upon execution by all
parties hereto of a written instrument so providing. In the event that any
provision in this Agreement is in conflict with, or inconsistent with, any
provision of the Financing Agreements, as such agreements may exist from time to
time, this Agreement shall exclusively govern and control. Notwithstanding
anything contained in this Agreement, except as specifically provided for
herein, this Agreement shall not be deemed to restrict, impair or otherwise
limit the terms and provisions of the Financing Agreements.
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4.4 FURTHER ASSURANCES. The Creditor hereby expressly agrees to
execute and deliver to the Company, from time to time hereafter, all financing
statements, security agreements, amendments thereto, or other documents, as the
Company may reasonably request in order to more effectively enforce the
agreements contained herein.
4.5 THIRD-PARTY BENEFICIARIES. The parties acknowledge and agree
that each holder of the Debentures and each holder of the Trust Preferred
Securities, in purchasing or otherwise acquiring such Debentures or Trust
Preferred Securities, as applicable, has relied and will hereafter continue to
rely upon the parties' performance of their respective obligations hereunder,
and as a result such holders of the Debentures and Trust Preferred Securities
are third party beneficiaries of the parties' performance hereunder.
4.6 SUCCESSORS AND ASSIGNS. The parties hereby acknowledge and agree
that this Agreement shall be binding upon and inure to the benefit of each and
all of them and their respective legal representatives, heirs, successors and
assigns under the Financing Agreements. Notwithstanding anything to the contrary
contained in the Financing Agreements, the Creditor agrees that it will not
assign or otherwise transfer any of its rights or obligations under any of the
Financing Agreements to any person or entity, unless and until such person or
entity has delivered to the other parties hereto a signed valid undertaking to
be bound by the terms of this Agreement.
4.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
PRINCIPAL AMOUNT OF
INDEBTEDNESS
AMERICAN EQUITY INVESTMENT LIFE
HOLDING COMPANY
By:
-------------------------------
Its:
$[-] [CREDITOR]
By:
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Its:
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