Exhibit 8(c)
UNCONDITIONAL CAPITAL MAINTENANCE AGREEMENT
BETWEEN
AMERICAN INTERNATIONAL GROUP, INC.
AND
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
This Unconditional Capital Maintenance Agreement (this "Agreement"), is made,
entered into and effective as of March 30, 2011 by and between American
International Group, Inc., a corporation organized under the laws of the State
of Delaware ("AIG"), and The Variable Annuity Life Insurance Company, a
corporation organized under the laws of the Texas(the "Company").
WITNESSETH:
WHEREAS, the Company is a life insurer subject to certain capital
requirements of the insurance laws and regulations of Texas (the "Domiciliary
State");
WHEREAS, the Company is an indirect wholly owned subsidiary of AIG; and
WHEREAS, AIG has an interest in unconditionally maintaining and enhancing
the Company's financial condition:
NOW, THEREFORE, in consideration of the mutual promises herein contained,
the parties hereto agree as follows:
1. In the event that the Company's Total Adjusted Capital for each of
the Company's first and third fiscal quarters (as determined based on
the Company's first and third fiscal quarterly filed statutory
financial statements, respectively, subject to any adjustments or
modifications thereto required by the Domiciliary State's insurance
department or the Company's independent auditors) falls below the
Specified Minimum Percentage of the Company's projected Company
Action Level RBC (in each case as estimated by the Company as of the
end of each such first and third fiscal quarters, as the case may
be), AIG shall, within the respective time periods set forth under
paragraph 4, in accordance with paragraph 5 and in compliance with
applicable law, provide to the Company cash, cash equivalents,
securities or other instruments that qualify (as admitted assets) for
purposes of calculating the Company's Total Adjusted Capital, as a
contribution and not as a loan, in an amount such that the Company's
Total Adjusted Capital as of the end of each of the Company's second
and fourth fiscal quarter, as the case may be, will be projected to
be at least equal to the Specified Minimum Percentage of the
Company's Company Action Level RBC. Notwithstanding the foregoing,
AIG may, at any time as it deems necessary in its sole discretion and
in compliance with
applicable law, make a contribution to the Company
in such amount as is required for the Company's Total Adjusted
Capital to equal a percentage of its Company Action Level RBC
determined to be appropriate by the Company and AIG.
2. In the event that the Company's Total Adjusted Capital (a) for each
of the Company's first, second and third fiscal quarters (as
determined based on the Company's first, second and third fiscal
quarterly filed statutory financial statements, respectively, subject
to any adjustments or modifications thereto required by the
Domiciliary State's insurance department or the Company's independent
auditors) is in excess of the Specified Minimum Percentage of the
Company's projected Company Action Level RBC (in each case as
estimated by the Company as of the end of each such first, second and
third fiscal quarters, as the case may be) or (b) as of each fiscal
year end (as shown in the Company's fiscal year-end filed statutory
financial statements, together with any adjustments or modifications
thereto required by the Domiciliary State's insurance department or
the Company's independent auditors) is in excess of the Specified
Minimum Percentage of the Company's Company Action Level RBC (as
shown in such fiscal year-end statutory financial statements), the
Company shall, within the respective time periods set forth under
paragraph 4, in accordance with paragraph 5 and subject to approval
by the Company's board of directors as required by the laws of the
Domiciliary State, declare and pay dividends ratably to its equity
holders in an aggregate amount equal to the lesser of (i) the amount
necessary to reduce the Company's projected or actual Total Adjusted
Capital as of each of the end of the Company's fiscal quarter or
fiscal year, as the case may be, to a level equal to or not
materially greater than the Specified Minimum Percentage of the
Company's Company Action Level RBC or (ii) the maximum amount
permitted by the Domiciliary State's law to be paid as an ordinary
dividend less an amount that the Company and AIG agree is appropriate
to protect the Company from exceeding such maximum amount allowed by
such Domiciliary State's law as a result of potential audit
adjustments or adjustments to the projections on which such dividend
amount is based. For the avoidance of doubt, this paragraph shall
only require the Company to pay ordinary dividends; under no
circumstances shall the Company be required to pay any dividend which
would trigger the extraordinary dividend provisions of Section
823.107 of the Insurance Law of the Domiciliary State or that is
otherwise prohibited by the Domiciliary State. Notwithstanding the
foregoing, this Agreement does not prohibit the payment of
extraordinary dividends to reduce the Company's projected or actual
Total Adjusted Capital to a level equal to or not materially greater
than the Specified Minimum Percentage of the Company's Company Action
Level RBC.
3. For the avoidance of doubt, the terms "Total Adjusted Capital",
"Company Action Level RBC", and "Surplus to Policyholders" shall have
the meanings ascribed thereto under the insurance laws and
regulations of the Domiciliary State, or, with respect to "Total
Adjusted Capital" and "Company Action Level RBC", if not defined
therein, shall have the meanings ascribed thereto in the risk-based
capital ("RBC") instructions promulgated by the National Association
of Insurance Commissioners ("NAIC"). The term "Specified Minimum
Percentage" shall be equal to the percentage set forth on Schedule 1
attached hereto, which shall be agreed to by AIG and the Company at
least once every year beginning upon the date of the filing of the
Company's 2010 Annual Statement with the Domiciliary State's
insurance department and following review against the capital
adequacy standards and criteria ("Agency Criteria") of each of
Standard & Poor's Corp. ("S&P"), Xxxxx'x Investors Service
("Moody's") and A.M. Best Company ("A.M. Best"). Notwithstanding the
obligation of the Company and AIG to review the Specified Minimum
Percentage on an annual basis, the parties hereto agree to review and
revise the Specified Minimum Percentage on a more frequent basis, if
the parties agree it is appropriate, to take into account (a) any
material changes after the date hereof to any Agency Criteria adopted
by any of S&P, Moody's or A.M. Best, on the one hand, or to the law
of the Domiciliary State or NAIC RBC rules or instructions, on the
other hand, which causes the results under the Agency Criteria to
diverge from that under the law of the Domiciliary State or NAIC RBC
rules or instructions, (b) the Company completes a material
transaction that is treated materially differently by the Agency
Criteria, on the one hand, and the NAIC RBC rules or instructions, on
the other hand, or (c) any other material development or circumstance
affecting the Company which AIG and the Company agree merits a
reevaluation of the Specified Minimum Percentage then in effect.
4. The Company and AIG agree that any contribution to be made under
paragraph 1 will take place within the following two time periods per
year, as applicable: (a) during the time beginning on the first
business day after the filing of the Company's first fiscal quarterly
statutory financial statements and ending on the last business day
prior to the end of the Company's second fiscal quarter; and (b)
during the time beginning on the first business day after the filing
of the Company's third fiscal quarterly statutory financial
statements and ending on the last business day prior to the end of
the Company's fourth fiscal quarter. Notwithstanding the foregoing,
in compliance with applicable law, any capital contribution provided
for under paragraph 1 may be made by AIG after the close of any
fiscal quarter or fiscal year of the Company but prior to the filing
by the Company of its statutory financial statements for such fiscal
quarter or fiscal year, respectively, and contributions of this
nature shall be recognized as capital contributions receivable as of
the balance sheet date
of the yet to be filed quarterly or annual financial statement (as
the case may be), pursuant to paragraph 8 of Statement of Statutory
Accounting Principles No. 72, to the extent approved by the
Domiciliary State. The Company and AIG further agree that any
dividends to be made under paragraph 2 will take place as soon as
practicable after the filing by the Company of the relevant fiscal
quarter-end or fiscal year-end statutory financial statements or such
earlier time as may be agreed by the Company and AIG.
5. At the time that any contribution is due under paragraph 4, AIG
agrees that it will either (a) make such contribution to the
Company's direct parent and cause such direct parent to then
contribute such funds, securities or instruments so contributed by
AIG to the Company, or (b) make such contribution directly to the
Company without receiving any capital stock or other ownership
interest in exchange therefor, subject in either case to any required
regulatory approvals. At any time any dividends are due under
paragraph 4, the Company agrees that it will make such dividend to
the Company's direct parent and will use its best efforts to cause
such direct parent to then dividend or otherwise provide such funds
to AIG. All contributions and dividends contemplated under this
Agreement shall be approved, declared and made, as applicable, in
compliance with applicable law, including, without limitation,
approval by the board of directors of each applicable entity
(including the Company) and any prior notice requirements specified
under applicable rules and regulations of the Domiciliary State.
6. Subject to the requirements of applicable law and the approval, to
the extent required, by any or all of the Company's senior
management, relevant management committees, board of directors, and
of any insurance regulator, the Company hereby acknowledges that, in
a manner consistent with past practice and any other reasonable
requirements of AIG, it will comply with all financial and budgetary
planning, risk mitigation, derisking or pricing, corporate
governance, investment, informational and procedural requirements set
forth by AIG.
7. AIG hereby waives any failure or delay on the part of the Company in
asserting or enforcing any of its rights or in making any claims or
demands hereunder.
8. Unless earlier terminated in accordance with this paragraph 8, this
Agreement shall continue indefinitely. AIG shall have the absolute
right to terminate this Agreement upon thirty (30) days' prior
written notice to the Company, which notice shall state the effective
date of termination (the "Termination Date"); provided, however, that
AIG agrees not to terminate this Agreement unless (a) AIG
significantly modifies the corporate structure or ownership of the
Company, or (b) AIG sells the
Company to an acquirer (i) having a rating from at least one of S&P,
Xxxxx'x, A.M. Best or a substitute agency, which is a nationally
recognized statistical rating organization, that is at least equal
to the lower of (x) AIG's then-current rating from such agency or
(y) the Company's then-current rating as supported by this Agreement
from such agency; or (ii) such that, immediately on the effective
date of the sale by AIG of the Company, the Company's capitalization
is consistent with the minimum capital adequacy standards and
criteria of at least one of S&P, Xxxxx'x, A.M. Best or a substitute
agency, which is a nationally recognized statistical rating
organization, for a rating that is equal to or better than the
Company's then-current rating on the date immediately preceding such
sale. To the extent not terminated previously by AIG pursuant to the
foregoing, this Agreement will terminate automatically one year
after the closing of any sale of the Company by AIG, and all
provisions hereof will be of no further force and effect. For the
avoidance of doubt, the termination of this Agreement pursuant to
this paragraph 8 shall not relieve either party of any obligation it
may owe to the other party hereunder that existed prior to, and
remains outstanding as of, the Termination Date.
9. Any policyholder holding a policy issued by the Company prior to the
termination of this Agreement shall have the right to demand that the
Company enforce the Company's rights under paragraphs 1, 4 and 5 of
this Agreement, and, if the Company fails or refuses to take timely
action to enforce such rights or the Company defaults in any claim or
other payment owed to any such policyholder when due, such
policyholder may proceed directly against AIG to enforce the
Company's rights under paragraphs 1, 4 and 5 of this Agreement;
provided, however, that no policyholder of the Company may take any
action authorized under this paragraph 9 unless and until (a) such
policyholder has given AIG written notice of its intent to enforce
the terms of this Agreement as provided in this paragraph 9, which
notice shall specify in reasonable detail the nature of and basis for
the policyholder's complaint and (b) AIG has failed to comply with
this Agreement within sixty (60) days after such notice is given;
and, provided, further, that upon termination of this Agreement in
accordance with paragraph 8 hereof, the rights of any policyholder as
provided for under this paragraph 9 shall terminate effective as of
the Termination Date, except with respect to the obligation of AIG
(if any) to make capital contributions to the Company pursuant to
paragraphs 1, 4 and 5 of this Agreement solely to the extent such
obligation arose prior to, and remained unsatisfied as of, the
Termination Date (it being understood that upon AIG's satisfaction of
all such obligations after the Termination Date, no such policyholder
shall have any rights against the Company or AIG, as the case may be,
under this paragraph 9).
10. This Agreement is not, and nothing herein contained and nothing done
pursuant hereto by AIG shall constitute or be construed or deemed to
constitute, an evidence of indebtedness or an obligation or liability
of AIG as guarantor, endorser, surety or otherwise in respect of any
obligation, indebtedness or liability, of any kind whatsoever, of the
Company. This Agreement does not provide, and is not intended to be
construed or deemed to provide, any policyholder of the Company with
recourse to or against any of the assets of AIG.
11. Any notice, instruction, request, consent, demand or other
communication required or contemplated by this Agreement shall be in
writing, shall be given or made or communicated by United States
first class mail, addressed as follows:
If to AIG:
American International Group, Inc.
000 Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
If to the Company:
The Variable Annuity Life Insurance Company
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: Secretary
with a copy (which shall not constitute notice) to:
The Variable Annuity Life Insurance Company
0000 Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
12. The covenants, representations, warranties and agreements herein set
forth shall be mutually binding upon and inure to the mutual benefit
of AIG and its successors and the Company and its successors.
13. This Agreement shall be governed by and construed in accordance with
the laws of Texas without giving effect to the principles of conflict
of laws.
14. If any provision of this Agreement shall be declared null, void or
unenforceable in whole or in part by any court, arbitrator or
governmental agency, said provision shall survive to the extent it is
not so declared and
all the other provisions of this Agreement shall remain in full force
and effect unless, in each case, such declaration shall serve to
deprive any of the parties hereto of the fundamental benefits of or
rights under this Agreement.
15. This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations
and discussion, whether oral or written, of the parties. This
Agreement may be amended at any time by written agreement or
instrument signed by the parties hereto.
16. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same
agreement among the parties.
[signature page follows]
7
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 INTERNATIONAL GROUP, INC.
By: /s/ XXXXX X. XXXXXXXXX
--------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
By: /s/ XXXXXX X. GENDER
-------------------------------------
Name: Xxxxxx X. Gender
Title: Senior Vice President
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
By: /s/ XXXXX XXXXXX
--------------------------------------
Name: Xxxxx Xxxxxx
Title: Senior Vice President
SCHEDULE 1
The Specified Minimum Percentage shall initially equal 350% of the Company's
Company Action Level RBC.
