EX-10.2 3 eqh-09302025exhibit102.htm EX-10.2
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Executed Version
CONFIDENTIAL
AMENDMENT NO. 1 TO REIMBURSEMENT AGREEMENT
AMENDMENT NO. 1 TO REIMBURSEMENT AGREEMENT, dated as of August 25,
2025 (this “Agreement”), is entered into by and among EQUITABLE HOLDINGS, INC., a Delaware
corporation (the “Guarantor”), the Subsidiary Account Parties party hereto and MUFG BANK LTD., as
LC Issuer.
PRELIMINARY STATEMENTS:
WHEREAS, the Guarantor, the Subsidiary Account Parties party thereto and the LC Issuer
entered into that certain Reimbursement Agreement, dated as of January 23, 2024 (as amended, restated,
amended and restated, supplemented, waived or otherwise modified prior to the date hereof, the
“Reimbursement Agreement” and as further amended pursuant to this Agreement, the “Amended
Reimbursement Agreement”; capitalized terms not otherwise defined in this Agreement have the same
meanings as specified in the Amended Reimbursement Agreement);
WHEREAS, the Guarantor has requested that the LC Issuer consent to certain amendments to the
Reimbursement Agreement; and
WHEREAS, the Guarantor, the Subsidiary Account Parties and the LC Issuer have agreed to
amend the Reimbursement Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereto hereby
agree as follows:
SECTION 1.Amendment to Reimbursement Agreement. Each of the parties hereto
agrees that, effective on the Amendment No. 1 Effective Date (as defined below), the Reimbursement
Agreement shall be amended as follows:
(a)the Reimbursement Agreement (including the exhibits thereto) is hereby amended
in its entirety to read in the form of Exhibit A attached hereto.
SECTION 2. Reference to and Effect on the Credit Documents. On and after the
Amendment No. 1 Effective Date, each reference in the Reimbursement Agreement to “this Agreement”,
“hereunder”, “hereof” or words of like import referring to the Reimbursement Agreement, and each
reference in the other Credit Documents to “the Reimbursement Agreement”, “thereunder”, “thereof” or
words of like import referring to the “Reimbursement Agreement”, shall mean and be a reference to the
Reimbursement Agreement, as amended by this Agreement. For the avoidance of doubt, this Agreement
shall also constitute a Credit Document under the Amended Reimbursement Agreement.
(a)The Reimbursement Agreement, as specifically amended by this Agreement, and
the other Credit Documents are, and shall continue to be, in full force and effect, and are hereby in all
respects ratified and confirmed.
(b)Except as expressly provided herein, the execution, delivery and effectiveness of
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this Agreement shall not operate as a waiver of any right, power or remedy of the LC Issuer under the
Reimbursement Agreement or any other Credit Document, nor shall it constitute a waiver of any
provision of the Reimbursement Agreement or any Credit Document.
SECTION 3.Conditions of Effectiveness for Agreement. This Agreement shall become
1751884074.3
effective as of the date on which the following conditions shall have been satisfied (or waived by the LC
Issuer) (the “Amendment No. 1 Effective Date”):
(a)the LC Issuer shall have received counterparts of this Agreement
executed by the Guarantor and the Subsidiary Account Parties party hereto;
(b)the representations and warranties contained in the
Reimbursement Agreement and
in this Agreement shall be true and correct in all material respects on and as of the Amendment No. 1
Effective Date (except that such representations and warranties which are qualified by materiality or
Material Adverse Effect shall be true and correct in all respects) (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific date);
(c)immediately before and after giving effect to this Agreement, no
Default or Event
of Default shall have occurred and be continuing;
(d)to the extent invoiced at least two Business Days prior to the
Amendment No. 1
Effective Date, all accrued fees and reasonable and documented fees and out-of-pocket
expenses payable to the LC Issuer shall have been paid in accordance with Section 5 of this Agreement
and Section 8.03 of the Reimbursement Agreement; and
(e)receipt by the LC Issuer of any information reasonably requested
by the LC Issuer
in order to comply with “know your customer” or similar identification requirements of the LC Issuer.
By releasing its signature page hereto, the Guarantor shall be deemed to have certified to the LC Issuer
that the conditions set forth in clauses (b) and (c) above have been satisfied.
SECTION 4.Representations and Warranties. The Guarantor hereby represents and
warrants to the LC Issuer that:
(a)on and as of the date hereof (i) it has all corporate power and
authority to enter into
and perform its obligations under this Agreement, the Amended Reimbursement Agreement and the other
Credit Documents to which it is a party, and (ii) this Agreement has been duly authorized, executed and
delivered by each Obligor;
(b)the representations and warranties set forth in Article IV of the
Amended Reimbursement Agreement and in the other Credit Documents are true and
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correct in all material respects on and as of the Amendment No. 1 Effective Date, with
the same effect as though made on and as of such date, except to the extent such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects on
and as of such earlier date; provided that, in each case, such materiality qualifier shall not
be applicable to any representations and warranties that already are qualified or modified
by materiality in the text thereof; and
(c)this Agreement, and the Amended Reimbursement Agreement,
constitute the legal,
valid and binding obligations of each of the Obligors, 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.
SECTION 5.Costs and Expenses. The Guarantor agrees that all reasonable,
documented and invoiced out-of-pocket expenses incurred by the LC Issuer in connection with the
preparation, execution and delivery of this Agreement and the other instruments and documents to be
delivered hereunder or in connection herewith are expenses that the Guarantor is required to pay or
reimburse pursuant to, and in accordance with, Section 8.03 of the Reimbursement Agreement.
SECTION 6.Execution in Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same instrument. Any signature to this Agreement may be
delivered by facsimile, electronic mail (including pdf) or any electronic signature complying with the U.S.
federal ESIGN Act of 2000 or the New York Electronic Signature and Records Act or other transmission
method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be
valid and effective for all purposes to the fullest extent permitted by applicable law. For the avoidance of
doubt, the foregoing also applies to any amendment, extension or renewal of this Agreement.
Each of the parties represents and warrants to the other parties that it has the corporate
capacity and authority to execute this Agreement through electronic means and there are no restrictions
for doing so in that party’s constitutive documents.
SECTION 7. New York Law, Judicial Proceedings and Waiver of Jury Trial. This
Agreement is subject to the provisions of Sections 8.06, 8.07 and 8.10 of the Reimbursement Agreement
relating to governing law, waiver of trial by jury and submission to jurisdiction and venue, the provisions
which are by this reference incorporated herein in full mutatis mutandis.
SECTION 8.Obligor Affirmation. Each Subsidiary Account Party party hereto hereby
acknowledges and consents to this Agreement. The Guarantor and each Subsidiary Account Party party
hereto hereby ratifies and confirms all of its respective obligations and liabilities under the Credit
Documents (as amended by the Agreement) to which it is a party and ratifies and confirms that such
obligations and liabilities remain in full force and effect.
SECTION 9.No Novation. This Agreement shall not extinguish the obligations for the
payment of money outstanding under the Reimbursement Agreement. Nothing herein contained shall be
construed as a substitution or novation of the obligations outstanding under the Reimbursement
Agreement or any instrument securing the same, which shall remain in full force and effect. Nothing
implied in this Agreement or in any other document contemplated hereby shall be construed as a release
or other discharge of any of the Obligors under any Credit Document from any of its obligations and
liabilities as an Obligor under any of the Credit Documents.
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to Reimbursement
Agreement to be executed by their respective authorized officers as of the date first above written.
GUARANTOR:
EQUITABLE HOLDINGS, INC.,
as
Guarantor
By:
Name: Peter Tian
Title: Treasurer
[EQH – MUFG– Signature Page to Amendment No. 1 to Reimbursement Agreement]
SUBSIDIARY ACCOUNT PARTIES:
EQ AZ LIFE RE COMPANY
By:
Name: Peter Tian
Title: Treasurer
[EQH – MUFG– Signature Page to Amendment No. 1 to Reimbursement Agreement]
Exhibit A
REIMBURSEMENT AGREEMENT
dated as of
January 23, 2024
among
EQUITABLE HOLDINGS, INC.
as the Guarantor
the SUBSIDIARY ACCOUNT PARTIES
party hereto
and
MUFG BANK, LTD.,
as LC Issuer
$200,000,000
1751884000.4
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS .......................................................................................................... 1
SECTION 1.01 Definitions ................................................................................................ 1
SECTION 1.02 Accounting Terms and Determinations ................................................. 18
ARTICLE II THE CREDITS....................................................................................................... 19
SECTION 2.01 Letter of Credit ....................................................................................... 19
SECTION 2.02 Reimbursement for LC Disbursements, Cover, Etc. .............................. 21
SECTION 2.03 Benchmark Replacement. ...................................................................... 24
SECTION 2.04 Fees ........................................................................................................ 25
SECTION 2.05 [Reserved] .............................................................................................. 26
SECTION 2.06 Payments Generally ............................................................................... 26
SECTION 2.07 Computation of Interest and Fees .......................................................... 26
SECTION 2.08 Provisions Relating to NAIC Approved Banks ..................................... 27
ARTICLE III CONDITIONS ...................................................................................................... 27
SECTION 3.01 Each Credit Extension ............................................................................ 27
SECTION 3.02 Effectiveness .......................................................................................... 27
ARTICLE IV REPRESENTATIONS AND WARRANTIES .................................................... 29
SECTION 4.01 Corporate Existence and Power ............................................................. 29
SECTION 4.02 Corporate and Governmental Authorization; Contravention ................. 29
SECTION 4.03 Binding Effect ........................................................................................ 29
SECTION 4.04 Financial Information; No Material Adverse Change............................ 29
SECTION 4.05 Litigation ................................................................................................ 30
SECTION 4.06 Compliance with ERISA ........................................................................ 30
SECTION 4.07 Taxes ...................................................................................................... 31
SECTION 4.08 Subsidiaries ............................................................................................ 31
SECTION 4.09 Not an Investment Company.................................................................. 31
SECTION 4.10 Obligations to be Pari Passu................................................................... 31
SECTION 4.11 No Default .............................................................................................. 31
SECTION 4.12 Material Subsidiaries and Subsidiary Account Parties .......................... 31
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TABLE OF CONTENTS
SECTION 4.13 Full Disclosure ....................................................................................... 31
SECTION 4.14 Hybrid Instruments ................................................................................ 32
(continued)
Page
SECTION 4.15 Margin Regulations ................................................................................ 32
SECTION 4.16 Sanctioned Persons; Anti-Corruption Laws; Patriot Act ....................... 32
SECTION 4.17 EEA Financial Institutions ..................................................................... 33
ARTICLE V COVENANTS........................................................................................................ 33
SECTION 5.01 Information............................................................................................. 33
SECTION 5.02 Payment of Obligations .......................................................................... 35
SECTION 5.03 Conduct of Business and Maintenance of Existence ............................. 35
SECTION 5.04 Maintenance of Property; Insurance ...................................................... 36
SECTION 5.05 Compliance with Laws........................................................................... 36
SECTION 5.06 Inspection of Property, Books and Records ........................................... 37
SECTION 5.07 Financial Covenants ............................................................................... 37
SECTION 5.08 Negative Pledge ..................................................................................... 37
SECTION 5.09 Consolidations, Mergers, Divisions, and Sales of Assets ...................... 38
SECTION 5.10 Use of Credit .......................................................................................... 38
SECTION 5.11 Obligations to be Pari Passu................................................................... 38
SECTION 5.12 Certain Debt ........................................................................................... 38
ARTICLE VI DEFAULTS .......................................................................................................... 38
SECTION 6.01 Events of Default ................................................................................... 38
ARTICLE VII CHANGE IN CIRCUMSTANCES ..................................................................... 41
SECTION 7.01 Increased Cost and Reduced Return ...................................................... 41
SECTION 7.02 Taxes ...................................................................................................... 42
SECTION 7.03 Mitigation Obligations ........................................................................... 46
SECTION 7.04 Survival .................................................................................................. 46
ARTICLE VIII MISCELLANEOUS .......................................................................................... 46
SECTION 8.01 Notices ................................................................................................... 46
SECTION 8.02 No Waivers ............................................................................................ 46
SECTION 8.03 Expenses; Indemnification; Non-Liability of the LC Issuer .................. 46
SECTION 8.04 Amendments and Waivers ..................................................................... 48
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TABLE OF CONTENTS
SECTION 8.05 Successors and Assigns .......................................................................... 48
SECTION 8.06 New York Law ....................................................................................... 49
(continued)
Page
SECTION 8.07 Judicial Proceedings ............................................................................... 49
SECTION 8.08 Counterparts; Integration; Headings ...................................................... 50
SECTION 8.09 Confidentiality ....................................................................................... 50
SECTION 8.10 WAIVER OF JURY TRIAL .................................................................. 51
SECTION 8.11 Joinder of Subsidiary Account Party ..................................................... 51
SECTION 8.12 USA PATRIOT Act ............................................................................... 51
SECTION 8.13 No Fiduciary Duty ................................................................................. 52
SECTION 8.14 Right of Setoff ........................................................................................ 52
SECTION 8.15 Entire Agreement ................................................................................... 52
SECTION 8.16 Acknowledgement and Consent to Bail-In of Affected Financial
Institutions............................................................................................................ 53
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SCHEDULES
Schedule I Material Subsidiaries and Subsidiary Account Parties
Schedule II Hybrid Instruments
Schedule III Debt
EXHIBITS
Exhibit A Form of Letter of Credit
Exhibit B Form of Letter of Credit Request
Exhibit C Form of Subsidiary Joinder Agreement
REIMBURSEMENT AGREEMENT dated as of January 23, 2024 among: EQUITABLE
HOLDINGS, INC., a Delaware corporation, the SUBSIDIARY ACCOUNT PARTIES party
hereto and MUFG BANK, LTD., as LC Issuer.
WHEREAS, the Guarantor wishes to facilitate reinsurance cessions for its Affiliates by
enabling the Subsidiary Account Parties to provide the Letter of Credit to the beneficiaries for
statutory recognition of reinsurance ceded to reinsurers;
WHEREAS, to induce the LC Issuer to enter into this Agreement and to issue the Letter
of Credit, the Guarantor will enter into this Agreement and execute the Guarantee Agreement in
favor of the LC Issuer; and
WHEREAS, the Bank is prepared to issue the Letter of Credit upon the terms and subject
to the conditions stated in this Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, including the covenants, terms and conditions hereinafter contained, and to induce
the LC Issuer to issue the Letter of Credit, the LC Issuer, the Guarantor and the Subsidiary
Account Parties agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01 Definitions. The following terms, as used herein, have the following
meanings:
“AB Entities” means AllianceBernstein Corporation, AllianceBernstein Holding L. P.,
AllianceBernstein L. P. and any of their subsidiaries.
“AB Tender Offer” means that cash tender offer commenced by the Guarantor on
February 24, 2025, as described in the Tender Offer Statement on Schedule TO filed by the
Guarantor with the SEC on February 24, 2025.
“AB Tender Offer and Reinsurance Transaction Adjustment Amount” means the one-
time cumulative impact on the consolidated shareholders’ equity, determined in accordance with
GAAP, of the Guarantor and its Consolidated Subsidiaries as of the date of completion of the
Reinsurance Transaction of the sum of (a) the differential in market value and book value of the
limited partnership interests of AllianceBernstein Holding L.P. subject to the AB Tender Offer,
in each case, as of the time of the completion of the AB Tender Offer, plus (b) the effect on
Accumulated Other Comprehensive Income for the fiscal quarter in which the Reinsurance
Transaction is completed resulting from the asset transfers completed at the closing of the
Reinsurance Transaction. The AB Tender Offer and Reinsurance Transaction Adjustment
Amount may be a positive value (in which case it shall increase Adjusted Consolidated Net
Worth) or negative value (in which case it shall reduce Adjusted Consolidated Net Worth) or
zero.
“Adjusted Consolidated Net Worth” means, at any date, without duplication, the sum of
(a) the consolidated shareholders’ equity, determined in accordance with GAAP, of the
Guarantor and its Consolidated Subsidiaries, plus (b) the aggregate Hybrid Instrument Amount
plus (c) the AB Tender Offer and Reinsurance Transaction Adjustment Amount; 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 Guarantor and its Consolidated Subsidiaries prepared in accordance with GAAP, (ii) the
effect of any election under the fair value option in FASB ASC 825 permitting a Person to
measure its financial assets or liabilities at the fair value thereof, and the related tax impact and
(iii) all noncontrolling interests (as determined in accordance with Statement of Financial
Accounting Standards No. 160, entitled “Noncontrolling Interests in Consolidated Financial
Statements”) shown on the consolidated balance sheet of the Guarantor and its Consolidated
Subsidiaries.
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) Daily
Simple SOFR, plus (b) 0.10% per annum.
“Adjusted Term SOFR Rate” means, for any interest period, an interest rate per annum
equal to (a) the Term SOFR Rate, plus (b) 0.10% per annum.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK
Financial Institution.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.
“Agreement” means this Reimbursement Agreement, as it may be amended or modified
and in effect from time to time.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a)
the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1%
and (c) the Adjusted Term SOFR Rate for a one month interest period as published two U.S.
Government Securities Business Days prior to such day (or if such day is not a U.S. Government
Securities Business Day, the immediately preceding U.S. Government Securities Business Day)
plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any
day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time
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on such day (or any amended publication time for the Term SOFR Reference Rate, as specified
by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology);
provided further that if the Alternate Base Rate as so determined would be less than zero, such
rate shall be deemed to be zero for the purposes of this Agreement. Any change in the Alternate
Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate
shall be effective from and including the effective date of such change in the Prime Rate, the
NYFRB Rate or the Adjusted Term SOFR Rate, respectively.
“Amendment No. 1 Effective Date” means August 25, 2025.
“Anti-Corruption Laws” has the meaning set forth in Section 4.16.
“Anti-Money Laundering Laws” has the meaning set forth in Section 4.16.
“Applicable Lending Office” means, as to the LC Issuer, its office, branch or Affiliate
located at its address set forth on the signature pages hereto or such other office, branch or
Affiliate of the LC Issuer as it may hereafter designate as its Applicable Lending Office for
purposes hereof by notice to the Guarantor.
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“Available Tenor” means, as of any date of determination and with respect to the
thencurrent Benchmark, as applicable, any tenor for such Benchmark or payment period for
interest calculated with reference to such Benchmark, as applicable, that is or may be used for
determining the length of an interest period pursuant to this Agreement as of such date.
“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).
“Benchmark” means, initially, the Term SOFR Rate; provided that if a Benchmark
Transition Event and the related Benchmark Replacement Date have occurred with respect to
Daily Simple SOFR or the Term SOFR Rate, as applicable, or the then-current Benchmark, then
“Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth
in the order below that can be determined by the LC Issuer for the applicable Benchmark
Replacement Date:
(1)Adjusted Daily Simple SOFR; or
(2)the sum of: (a) the alternate benchmark rate that has been selected by the LC Issuer,
with the consent of the Guarantor (such consent not to be unreasonably withheld or
delayed) as the replacement for the then-current Benchmark for the applicable
Corresponding Tenor 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 or bilateral credit facilities at such
time in the United States 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, the spread adjustment, or
method for calculating or determining such spread adjustment (which may be a positive or
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negative value or zero) that has been selected by the LC Issuer, with the consent of the Guarantor
(such consent not to be unreasonably withheld or delayed) giving due consideration to (i) 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 or bilateral credit
facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark
Replacement, any technical, administrative or operational changes (including changes to the
definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S.
Government Securities Business Day,” timing and frequency of determining rates and making
payments of interest, timing of borrowing requests or prepayment, conversion or continuation
notices, length of lookback periods, the applicability of breakage provisions, and other technical,
administrative or operational matters) that the LC Issuer decides in its reasonable discretion may
be appropriate to reflect the adoption and implementation of such Benchmark and to permit the
administration thereof by the LC Issuer in a manner substantially consistent with market practice
(or, if the LC Issuer decides that adoption of any portion of such market practice is not
administratively feasible or if the LC Issuer determines that no market practice for the
administration of such Benchmark exists, in such other manner of administration as the LC Issuer
decides is reasonably necessary in connection with the administration of this Agreement and the
other Credit Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, 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 no longer
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.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date
occurs on the same day as, but earlier than, the Reference Time in respect of any determination,
the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time
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for such determination and (ii) 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, with respect to any Benchmark, 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 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 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 Federal Reserve Board, the NYFRB, the CME Term SOFR
Administrator, an insolvency official with jurisdiction over the administrator for such
Benchmark (or such component), in each case, 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 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 any Available Tenor of such Benchmark (or such component thereof); or
(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 all Available Tenors of such Benchmark (or such
component thereof) are no longer, or as a of a specified future date will no longer be,
representative.
For the avoidance of doubt, 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) (x) beginning at the time
that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition 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 2.03 and (y)
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 2.03.
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“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.
“Business Day” means any day (other than a Saturday or a Sunday or other day on which
banks are authorized or required by law to close in New York City); provided that, in relation to
any interest rate settings, fundings, disbursements, settlements or payments, any such day that is
also a U.S. Government Securities Business Day.
“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.
“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 Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under said Act) of 35% or more of the outstanding shares of common
stock of the Guarantor.
“CME Term SOFR Administrator” means CME Group Benchmark Administration
Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR)
(or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.
“Collateral Account” has the meaning set forth in Section 2.02(e).
“Consolidated Subsidiary” means, at any date, any Subsidiary the accounts of which
would be consolidated with those of the Guarantor in its consolidated financial statements if such
statements were prepared as of such date; provided that, for purposes of Sections 4.04(a) and (b)
and 5.01, the term “Consolidated Subsidiary” shall include each of the AB Entities and the
Investment Entities to the extent the accounts of such entity are required to be consolidated with
those of the Guarantor in its consolidated financial statements in accordance with GAAP;
provided further that, for purposes of the calculation of Adjusted Consolidated Net Worth and
Consolidated Total Indebtedness, the term “Consolidated Subsidiary” shall include each of the
AB Entities to the extent the accounts of such entity are required to be consolidated with those of
the Guarantor in the consolidated financial statements in accordance with GAAP but only to the
extent of the Guarantor’s direct or indirect proportional ownership of the AB Entities.
7
“Consolidated Total Capitalization” means, at any date, for the Guarantor and its
Consolidated Subsidiaries, the sum of, without duplication, (i) Consolidated Total Indebtedness
plus (ii) Adjusted Consolidated Net Worth.
“Consolidated Total Indebtedness” means, at any date, for the Guarantor and its
Consolidated Subsidiaries, the sum of, without duplication, (i) the aggregate amount of all
NonOperating Indebtedness plus (ii) the aggregate amount of all Disqualified Capital Stock and
Hybrid Instruments of such Person to the extent such amount would not be included in the
determination of Adjusted Consolidated Net Worth.
“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 Guarantee Agreement, (c) any fee
letter and (d) with respect to the Letter of Credit, collectively, any application therefor and any
other agreements, instruments, guarantees or other documents (whether general in application or
applicable only to the Letter of Credit) governing or providing for (i) the rights and obligations of
the parties concerned or at risk with respect to the Letter of Credit or (ii) any collateral security
for any of such obligations, each as the same may be modified and supplemented and in effect
from time to time.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal
to SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government
Securities Business Days prior to (i) if such SOFR Rate Day is a U.S. Government Securities
Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government
Securities Business Day, the U.S. Government Securities Business Day immediately preceding
such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on
the SOFR Administrator’s Website; provided that if Daily Simple SOFR as so determined would
be less than 0.00%, such rate shall be deemed to be 0.00% for purposes of this Agreement. 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 Guarantor.
“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, (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, (g)
all Debt of others guaranteed by such Person, and (h) all obligations of such Person in respect of
Disqualified Capital Stock (and, for the avoidance of doubt, Debt shall include Hybrid
Instruments); provided that the definition of “Debt” does not include any obligations of such
Person (x) 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
8
same or substantially similar securities (or other property) or (y) to return collateral pledged in
respect of or in connection with the loan of such securities.
“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.
“Default Rate” means a per annum rate of interest equal to the Alternate Base Rate plus
two percent (2.00%).
“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 that portion of any Capital Stock (other than Capital
Stock that is solely redeemable, or at the election of the issuer thereof (not subject to any
condition), may be redeemed, with Capital Stock that is not Disqualified Capital Stock) which,
by its terms (or by the terms of any security into which it is convertible or for which it is
exchangeable at the option of the holder thereof), or upon the happening of any event, matures or
is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable
at the sole option of the holder thereof, on or prior to 180 days after the first anniversary of the
Termination Date.
“Disqualified Institution” means each of the (a) certain banks, financial institutions and
other institutional lenders and Persons identified to the LC Issuer in writing on or prior to the
date hereof, (b) bona fide competitors of the Guarantor and its Subsidiaries identified in writing
by the Guarantor to the LC Issuer from time to time, (c) those Persons primarily engaged in
private equity, venture capital or mezzanine or distressed lending and identified in writing by the
Guarantor to the LC Issuer from time to time and (d) Affiliates of the Persons or entities referred
to in clauses (a) and (b) above to the extent clearly identifiable by name or identified in writing
by the Guarantor to the LC Issuer from time to time; provided that notwithstanding anything
herein to the contrary, in no event shall any supplement to the list of Disqualified Institutions
apply retroactively to disqualify any Persons that have previously acquired a participation
interest under this Agreement that is otherwise permitted by this Agreement, but upon the
effectiveness of such designation, any such Person may not acquire any additional participations;
provided, further, that no supplement to such list shall be effective until the third (3rd) Business
Day following the LC Issuer’s receipt of such supplement in writing; provided, further that any
bona fide debt fund or investment vehicle that is engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the ordinary course of
business which is managed, sponsored or advised by any Person controlling, controlled by or
9
under common control with a competitor or its controlling owner shall be deemed not to be a
competitor of the Guarantor or any of its Subsidiaries.
“Dividing Person” has the meaning set forth in the definition of “Division.”
“Division” means the division of assets, liabilities, and/or obligations of a Person (the
“Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or
similar arrangement), which may or may not include the Dividing Person and pursuant to which
the Dividing Person may or may not survive.
“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.
“Effective Date” means the date this Agreement becomes effective in accordance with
Section 3.02.
“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, without limitation, 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.
“EQ AZ” means EQ AZ Life RE Company, an Arizona corporation.
“Equity Issuance” means, with respect to any Person, (a) any issuance or sale by such
Person of (i) any Capital Stock, (ii) any warrants or options exercisable in respect of Capital
Stock (other than any warrants or options issued to directors, officers or employees of such
10
Person in their capacity as such and any Capital Stock issued upon the exercise thereof) or (iii)
any other security or instrument representing Capital Stock (or the right to obtain any Capital
Stock) in such Person or (b) the receipt by such Person of any contribution to its capital (whether
or not evidenced by any equity security) by any other Person; provided that Equity Issuance shall
not include, with respect to any Subsidiary of the Guarantor, any such issuance or sale by such
Subsidiary to the Guarantor or another Subsidiary or any capital contribution by the Guarantor or
another Subsidiary to such Subsidiary.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, or
any successor statute.
“ERISA Group” means the Guarantor 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 Guarantor, are treated as a single employer under Section 414(b) or
414(c) of the Code.
“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.
“Evergreen Letter of Credit” has the meaning set forth in Section 2.01.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB
based on such day’s federal funds transactions by depositary institutions, as determined in such
manner as shall be set forth on the NYFRB’s Website from time to time, and published on the
next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if
the Federal Funds Effective Rate as so determined would be less than 0.00%, such rate shall be
deemed to be 0.00% for the purposes of this Agreement.
“Financial Officer” means the chief financial officer, principal accounting officer,
treasurer, assistant treasurer, or other senior financial officer of the Guarantor, in each case, to the
extent duly authorized to deliver certifications hereunder.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as
of the execution of this Agreement, the modification, amendment or renewal of this Agreement
or otherwise) with respect to the Term SOFR Rate or Daily Simple SOFR, as applicable. For the
avoidance of doubt, the initial Floor for each of the Term SOFR Rate and Daily Simple SOFR is
0.00%.
“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 (i) 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 (ii) entered into for the purpose of assuring in any other manner the
11
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.
“Guarantee Agreement” means the Guarantee Agreement, dated as of the date hereof,
made by the Guarantor in favor of the LC Issuer.
“Guarantor” means Equitable Holdings, Inc., a Delaware corporation, and its successors.
“Hybrid Instrument Amount” means, with respect to any Hybrid Instruments, the
principal amount (which principal amount may be a portion of the aggregate principal amount) of
such Hybrid Instrument that is accorded equity credit treatment by S&P and/or Moody’s at the
time of issuance thereof; provided that, (i) in the case such Hybrid Instruments are given equity
credit by both S&P and Moody’s, the higher of the two amounts shall apply, (ii) the equity credit
treatment given by S&P and Moody’s to any Hybrid Instrument at the time of issuance shall be
deemed to apply to such Hybrid Instrument to the extent such Hybrid Instrument remains
outstanding, irrespective of any change in the equity credit treatment given by either such rating
agency to such Hybrid Instrument at any time after the date of issuance (it being agreed, for
avoidance of doubt, that any change in the amount or percentage of the equity credit given to
such Hybrid Instrument that is contemplated in the equity credit treatment given to such Hybrid
Instrument as of the date of issuance (including, without limitation, any such change resulting
from the life to maturity of such Hybrid Instrument or the amount of all such Hybrid Instruments
as a percentage of total adjusted capital (as determined by S&P or Moody’s)) shall continue to be
given effect after the date of issuance in determining the Hybrid Instrument Amount), unless
such change results from an amendment or modification to such Hybrid Instrument, and (iii) the
Hybrid Instrument Amount that is included in the determination of Adjusted Consolidated Net
Worth shall not, at any time, exceed 15% of Consolidated Total Capitalization.
“Hybrid Instruments” means Securities (as defined below) that are given at least some
equity credit by S&P or Moody’s (and as to which, in the case of any Hybrid Instrument issued
after the Effective Date, the Guarantor shall have provided evidence of such equity credit to the
LC Issuer), provided that the term “Hybrid Instruments” shall exclude any Securities to the
extent recorded in the shareholder’s equity section of the consolidated balance sheet of the
Guarantor and its Consolidated Subsidiaries most recently filed with the SEC. As used herein
“Securities” means any stock, share, partnership interest, membership interest in a limited
liability company, voting trust certificate, certificate of interest or participation in any profit-
sharing agreement or arrangement, option, warrant, bond, debenture, note, or other evidence of
indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or acquisition of, or any right
to subscribe to, purchase or acquire, any of the foregoing.
“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of
the Guarantor that is not guaranteed by any other Person or subject to any other credit
enhancement.
12
“Insurance Subsidiary” means any Subsidiary which is 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.
“Investment Entity” means a joint venture, partnership, limited liability company or other
Person that is not wholly-owned by the Guarantor or any of its Subsidiaries, in respect of which
none of the Guarantor or any of its Subsidiaries directly or indirectly exercises or has the
contractual right (pursuant to the terms of the relevant joint venture agreement, partnership
agreement, operating agreement or limited liability company agreement or similar agreement) to
exercise day-to-day management or control over the business or affairs of such Person (provided,
that the Guarantor or its Subsidiaries shall not be considered to have control solely as a result of
having a veto or consent right over certain material actions or decisions, including, without
limitation, the incurrence of indebtedness or other obligations or the entry into certain other
material transactions).
“LC Disbursement” means a payment made by the LC Issuer pursuant to the Letter of
Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of the
outstanding Letter of Credit at such time plus (b) the aggregate amount of all LC Disbursements
under the Letter of Credit that have not yet been reimbursed by or on behalf of the relevant
Subsidiary Account Party at such time.
“LC Issuer” means MUFG Bank, Ltd., in its capacity as LC Issuer hereunder.
“Letter of Credit” means the letter of credit issued under Section 2.01.
“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 Guarantor 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.
“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, financial
condition or operations of the Guarantor and its Consolidated Subsidiaries, taken as a whole or
(b) the validity or enforceability of any of the Credit Documents or the material rights and
remedies of the LC Issuer under the Credit Documents.
“Material Subsidiary” means (a) any Subsidiary that has total assets (including, without
limitation, Capital Stock of its Subsidiaries) in excess of 10% of the total assets of the Guarantor
and its Consolidated Subsidiaries (based upon and as of the date of the filing of the most recent
consolidated balance sheet of the Guarantor delivered pursuant to Section 4.04 or 5.01) and (b)
any Subsidiary of the Guarantor whose Subsidiaries include one or more Material Subsidiaries.
In the event that the aggregate total assets of the Material Subsidiaries represents less than 80%
13
of the consolidated total assets of the Guarantor and its Consolidated Subsidiaries (as reported on
the Guarantor’s most recent consolidated balance sheet furnished pursuant to Section 4.04 or
5.01), the Guarantor shall promptly designate by written notice to the LC Issuer 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 Guarantor and its Consolidated Subsidiaries (as reported on the Guarantor’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 Guarantor or any of its Material Subsidiaries then due and payable by the Guarantor 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 Guarantor or any of its Material
Subsidiaries.
“Moody’s” means Moody’s Investors Service, Inc.
“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.
“NAIC Approved Bank” means a bank that is a bank listed on the most current “List of
Qualified U.S. Financial Institutions” approved by the NAIC (the “NAIC Approved Bank List”)
(or any branch or related entity of such bank that qualifies as a Qualified U.S. Financial
Institution in accordance with the Purposes and Procedures Manual of the NAIC Investment
Analysis Office).
“NAIC Approved Bank List” has the meaning set forth in the definition of “NAIC
Approved Bank”.
“NAIC-Compliant Provisions” has the meaning set forth in Section 2.01(a).
“Net Proceeds” means, with respect to any Equity Issuance, the aggregate cash proceeds
received in respect of such Equity Issuance, net of all reasonable fees and out-of-pocket expenses
paid to third parties (other than Affiliates of the Guarantor) in connection therewith; provided
that Net Proceeds of any Equity Issuance shall not include any proceeds received in respect of
the exercise of stock options held by officers, directors, employees, or consultants of the
Guarantor or any of its Subsidiaries.
14
“Non-Operating Indebtedness” of any Person means, at any date, all Debt (other than
Operating Indebtedness) of such Person.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective 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 LC Issuer
from a federal funds broker of recognized standing selected by it; provided, further, that if any of
the aforesaid rates shall be less than 0.00%, such rate shall be deemed to be 0.00% for purposes
of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or
any successor source.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of, any Obligor arising under any Credit Document or otherwise with respect to the Letter
of Credit, 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 any Obligor 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.
“Obligor” means each of the Guarantor and each Subsidiary Account Party.
“Operating Indebtedness” of any Person means, at any date, without duplication, any
Debt of such Person (a) in respect of or supporting (including any Guarantee of Debt in respect
thereof) AXXX, XXX and other similar life reserve requirements, (b) incurred in connection
with repurchase agreements, securities lending or other spread lending activities, (c) to the extent
the proceeds of which are used directly or indirectly (including for the purpose of funding
portfolios that are used to fund trusts in order) to support AXXX, XXX and other similar life
reserves, (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 Guarantor and its Subsidiaries being called upon to
make such principal and interest payments, (e) excluded entirely from 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 or the Federal Agriculture Mortgage Corporation or (g) (i)
incurred by or on behalf of collateralized loan obligation investment vehicles managed by AB
Broadly Syndicated Loan Manager LLC, including as a part of customary warehouse financing,
or (ii) incurred by Investment Entities, in the case of each of (i) and (ii) for which there is no
recourse to the Guarantor and its Subsidiaries.
15
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight
federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed
banking offices of depository institutions, as such composite rate shall be determined by the
NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next
succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Ownership Interests” has the meaning set forth in Section 5.08.
“Parent” means, with respect to the LC Issuer, any Person as to which the LC Issuer is,
directly or indirectly, a subsidiary.
“Participant” has the meaning set forth in Section 8.05(b).
“Participant Register” has the meaning set forth in Section 8.05(b).
“Patriot Act” has the meaning set forth in Section 4.16.
“Payment Account” means an account designated by the LC Issuer in a notice to the
Guarantor to which payments hereunder are to be made.
“PBGC” means the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.
“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 (5) 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.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the
“Prime Rate” in the U.S. 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 LC Issuer) or any
similar release by the Federal Reserve Board (as determined by the LC Issuer). Each change in
the Prime Rate shall be effective from and including the date such change is publicly announced
or quoted as being effective.
“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 Effective Date.
16
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if
such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two (2)
Business Days preceding the date of such setting, (2) if such Benchmark is Daily Simple SOFR,
then four (4) Business Days prior to such setting or (3) if such Benchmark is none of the Term
SOFR Rate or Daily Simple SOFR, the time determined by the LC Issuer in its reasonable
discretion.
“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 of
Governors of the Federal Reserve System, in each case as in effect from time to time.
“Regulatory Authority” has the meaning set forth in Section 8.9(b).
“Reinsurance Transaction” means the closing of the transactions on July 31, 2025
contemplated by the RGA Master Transaction Agreement, including entry into the Reinsurance
Agreements and the Trust Agreements (as defined therein), in accordance with the terms of the
RGA Master Transaction 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” shall mean the Federal Reserve Board and/or the
NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or
the NYFRB or, in each case, any successor thereto.
“Reset Event” has the meaning set forth in Section 5.07(a).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK
Financial Institution, a UK Resolution Authority.
“RGA Master Transaction Agreement” means that certain Master Transaction Agreement
dated as of February 23, 2025, by and among Equitable Financial Life Insurance Company,
Equitable Financial Life Insurance Company of America, Equitable Financial Life and Annuity
Company and RGA Reinsurance Company, as amended from time to time.
“S&P” means Standard and Poor’s Ratings Services.
“Sanctions” has the meaning set forth in Section 4.16.
“Sanctions Laws” has the meaning set forth in Section 4.16.
“SEC” means Securities and Exchange Commission or any governmental body, agency
or official succeeding to its principal functions.
“Secured Obligations” has the meaning set forth in Section 2.02(e).
17
“Sell-Down Event” means the end of the 90 day period (or such longer period as the LC
Issuer may approve) following any event or series of events as a result of which the Guarantor
ceases to own, directly or indirectly, shares of the outstanding shares of common stock of either
the AB Entities or Equitable Financial Life Insurance Company representing 51% or more of the
aggregate ordinary voting power represented by the issued and outstanding common stock of
either the AB Entities or Equitable Financial Life Insurance Company, respectively; provided,
that no Sell-Down Event shall be deemed to have occurred if (i) the relevant event or series of
events has been waived by the LC Issuer or (ii) the Guarantor or the Subsidiary Account Parties
have provided cash collateral to the LC Issuer in an amount equal to the face amount of the
outstanding Letter of Credit at such time.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the
SOFR Administrator.
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor
administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New
York, 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 Determination Date” has the meaning specified in the definition of “Daily Simple
SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“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
Guarantor, but excluding: (i) the AB Entities, and (ii) the Investment Entities.
“Subsidiary Account Party” means EQ AZ and each other direct or indirect Subsidiary of
the Guarantor that becomes a successor Subsidiary Account Party in accordance with the terms
of Section 8.11.
“Subsidiary Joinder Agreement” means a joinder to this Agreement, substantially in the
form of Exhibit C.
“Term SOFR Determination Day” has the meaning specified in the definition of “Term
SOFR Reference Rate”.
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“Term SOFR Rate” means, for the applicable Corresponding Tenor as of the applicable
Reference Time, the Term SOFR Reference Rate, as such rate is published by the CME Term
SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR
Determination Day”) the rate per annum published by the CME Term SOFR Administrator as the
forward-looking rate based on SOFR with a tenor comparable to the applicable interest period;
provided that if the Term SOFR Reference Rate as so determined would be less than 0.00%, such
rate shall be deemed to be 0.00% for purposes of this Agreement. If by 5:00 pm (New York City
time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the
applicable tenor has not been published by the CME Term SOFR Administrator and a
Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then so
long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR
Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate
as published in respect of the first preceding U.S. Government Securities Business Day for which
such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long
as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S.
Government Securities Business Days prior to such Term SOFR Determination Day.
“Termination Date” means the earliest to occur of (i) January 23, 2029 or, if such day is
not a Business Day, the next preceding Business Day, as such date may be modified in
accordance with Section 2.01(b) or Section 2.01(e), (ii) upon the occurrence of a Sell-Down
Event, on the date thereof or (iii) the date of acceleration of any of the Obligations pursuant to
Section 6.01.
“UK Financial Institution” 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 subject to 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.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement
excluding the related Benchmark Replacement Adjustment.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii)
a Sunday or (iii) 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.
“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
19
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.
SECTION 1.02 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, 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 Effective Date, except as otherwise specifically prescribed herein.
(b)If at any time any change in GAAP would affect the computation of any
requirement set forth in any Credit Document, and either the Guarantor or the LC Issuer shall so
request, the LC Issuer and the Guarantor shall negotiate in good faith to amend such requirement
to preserve the original intent thereof in light of such change in GAAP (subject to the approval of
the LC Issuer); provided that, until so amended, (i) such requirement shall continue to be
computed in accordance with GAAP as in effect prior to such change therein and (ii) the
Guarantor shall provide to the LC Issuer 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.
ARTICLE II THE CREDITS
SECTION 2.01 Letter of Credit.
(a)General. Subject to the terms and conditions set forth herein, on or around
the Effective Date, the LC Issuer agrees to issue a Letter of Credit denominated in Dollars for the
account of such Subsidiary Account Party, in a face amount equal to $200,000,000.
The Letter of Credit shall be a standby letter of credit in substantially the form
attached hereto as Exhibit A, with such changes therein as may be requested by the relevant
Subsidiary Account Party, so long as the LC Issuer approves such changes. The Letter of Credit
shall be unconditional. Notwithstanding the foregoing, subject to the terms and conditions of
this Agreement, if the relevant Subsidiary Account Party requests that the Letter of Credit
include additional provisions (or revisions to the form attached hereto as Exhibit A) in order to
satisfy the requirements for letters of credit under credit-for-reinsurance provisions in the
jurisdiction of organization of the beneficiary of the Letter of Credit with respect to reinsurance
reserve credit requirements by providing written notice to the LC Issuer at least five (5) Business
Days prior to issuance of the Letter of Credit (or such shorter time as may be agreed by the LC
Issuer) specifying the requested additional provisions and a summary of the reasons therefor, the
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Letter of Credit shall include such requested or revised provisions (such provisions, “NAIC-
Compliant Provisions”) unless the issuance of the Letter of Credit with any such NAIC-
Compliant Provisions would, in the reasonable judgment of the LC Issuer, materially increase the
potential liability of the LC Issuer, and the Guarantor or the Subsidiary Account Party has not
otherwise agreed to compensate the LC Issuer for any such increased liability in a manner
reasonably acceptable to the LC Issuer. The LC Issuer shall not be obligated to verify that any
requested NAIC-Compliant Provisions satisfy such requirements for reserve credit. In no event
shall the Letter of Credit be transferable.
(b)Notice of Issuance, Amendment or Extension. To request the issuance of
the Letter of Credit (or the amendment or extension of an outstanding Letter of Credit), the
Subsidiary Account Party shall hand deliver or telecopy (or transmit by electronic
communication, if arrangements for doing so have been approved by the LC Issuer) to the LC
Issuer, not later than noon (New York City time) three (3) Business Days (or such shorter time as
the LC Issuer may agree in a particular instance in its sole discretion) prior to the requested date
of issuance, amendment or extension, a notice, substantially in the form of Exhibit B hereto (or
such other form as may be agreed between such Subsidiary Account Party and the LC Issuer),
requesting the issuance of the Letter of Credit, or identifying the Letter of Credit to be amended
or extended, and specifying the date of issuance, amendment or extension, as the case may be
(which shall be a Business Day), the date on which the Letter of Credit is to expire (which shall
comply with Section 2.01(d)), the amount of the Letter of Credit, the name and address of the
beneficiary thereof and the terms and conditions of (and such other information as shall be
necessary to prepare, amend or extend, as the case may be) the Letter of Credit (which shall
comply with Section 2.01(a)). Any amendment to the Letter of Credit is subject to the consent
and approval of the beneficiary of the Letter of Credit.
To the extent agreed by the LC Issuer in its sole discretion, the Letter of Credit may
provide for the automatic extension of the expiry date thereof, unless the LC Issuer shall give
notice to the beneficiary thereof on or before the date that is 60 days prior to the stated expiration
date (or such shorter or longer period of time as may be agreed between the Guarantor and the
LC Issuer, but in no event shorter than 30 days) that such expiry date shall not be extended (in
such case, the “Evergreen Letter of Credit” and such notice, a “Non-Extension Notice”) (it being
understood and agreed that, notwithstanding any provision of this Agreement to the contrary, the
renewal of the Evergreen Letter of Credit upon an automatic extension shall not require any
notice or request to be delivered under Section 2.01(b) or under the Letter of Credit); provided,
that the Letter of Credit shall not by its terms expire later than one (1) year after the Termination
Date with a properly executed Non-Extension Notice.
(c)Limitations on Amounts; Reductions. Notwithstanding anything in this
Agreement to the contrary, the parties hereto acknowledge and agree that (i) the LC Issuer shall
not have any obligation to issue any letter of credit hereunder other than the Letter of Credit
issued on the Effective Date and (ii) the face amount of the Letter of Credit shall permanently
and irrevocably be reduced, on a dollar-for-dollar basis, concurrently with any LC Disbursement
in respect thereof, and in no event shall the face amount of the Letter of Credit be increased
21
without the prior written consent of the LC Issuer. For the avoidance of doubt, the Letter of
Credit is nonrevolving.
(d)Expiry Date. The Letter of Credit shall expire at or prior to the close of
business on the earlier of (i) the date five (5) years after the date of the issuance of the Letter of
Credit (provided that the Letter of Credit shall contain “evergreen” provisions for the renewal or
extension thereof to a date not later than one (1) year after the then current expiry date thereof) or
(ii) the first anniversary of the Termination Date with a properly executed Non-Extension Notice.
The Guarantor shall cause the Letter of Credit outstanding on or after the date that is five (5)
Business Days prior to the Termination Date to be cash collateralized in accordance with Section
2.02(e) on or prior to such date and for so long as the Letter of Credit is outstanding.
(e)Extensions to the Termination Date. So long as (i) no Default or Event of
Default shall have occurred and be continuing on the relevant anniversary of the Effective Date
and (ii) the LC Issuer has not given written notice of non-extension to the Obligors on or before
the date that is 60 days prior to the relevant anniversary of the Effective Date (or such shorter or
longer period of time as may be agreed between the Guarantor and the LC Issuer, but in no event
shorter than 30 days), the Termination Date will be extended by one additional year as of each of
the first five anniversaries of the Effective Date, such that if each of the five extensions take
effect, the final Termination Date shall be ten years from the Effective Date; provided, however,
the thenexisting Termination Date will not be eligible for further extension following the
occurrence of a Sell-Down Event.
(f)Conditions to Issuance, Etc. The LC Issuer shall have no obligation to
issue,
amend or extend the Letter of Credit, so long as:
(i)Any order, judgment or decree of any governmental
authority or
arbitrator shall have been entered or rendered which by its terms purport to enjoin or
restrain the LC Issuer from issuing the Letter of Credit;
(ii)Any law applicable to LC Issuer or any request or
directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the LC Issuer shall
prohibit, or request that the LC Issuer refrain from, the issuance of
letters of credit generally or the Letter of Credit in particular or shall
impose upon the LC Issuer with respect to any the Letter of Credit any
restriction, reserve or capital requirement (for which the LC Issuer is
not otherwise compensated hereunder) not in effect on the Effective
Date, or shall impose upon the LC Issuer any unreimbursed loss, cost or
expense which was not applicable on the Effective Date and which the
LC Issuer in good faith deems material to it;
(iii)Except as otherwise agreed by LC Issuer, the Letter
of Credit is
22
in an initial amount less than $1,000,000;
(iv)The Letter of Credit is to be denominated in a
currency other than
US Dollars;
(v)More than one (1) Letter of Credit is outstanding;
(vi)A Sell-Down Event shall have occurred or would
have occurred
but for the posting of cash collateral as described in clause (ii) of the definition of
“Sell-
Down Event”; or
(vii)The Letter of Credit contains any provisions for
automatic
reinstatement of the stated amount after any drawing thereunder.
SECTION 2.02 Reimbursement for LC Disbursements, Cover, Etc.
(a)Reimbursement. If the LC Issuer shall make any LC Disbursement in
respect of the Letter of Credit the relevant Subsidiary Account Party shall reimburse the LC
Issuer in respect of any such LC Disbursement by paying to the LC Issuer an amount equal to
such LC Disbursement not later than 5:00 p.m., New York City time, on the Business Day
immediately following the day that the Guarantor on behalf of the relevant Subsidiary Account
Party receives notice of such LC Disbursement.
(b)Reimbursement Obligations Absolute. The obligations of the Subsidiary
Account Party to reimburse LC Disbursements as provided in Section 2.02(a) and of the
Guarantor under the Guarantee Agreement shall be absolute, unconditional and irrevocable, and
shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of the
Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under the Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment under the Letter of
Credit against presentation of a draft or other document that does not comply with the terms of
the Letter of Credit, (iv) at any time or from time to time, without notice to the Guarantor or any
Subsidiary Account Party, the time for any performance of or compliance with any of such
reimbursement obligations of any Subsidiary Account Party or party thereto shall be waived,
extended or renewed, (v) any of such reimbursement obligations of any Subsidiary Account
Party or party thereto shall be amended or otherwise modified in any respect, or any guarantee of
any of such reimbursement obligations or any security therefor shall be released, substituted or
exchanged in whole or in part or otherwise dealt with, (vi) any lien or security interest granted to,
or in favor of, the LC Issuer as security for any of such reimbursement obligations shall fail to be
perfected, (vii) the occurrence of any Default, (viii) the existence of any proceedings of the type
described in Section 6.01(g) or (h) with respect to any other Subsidiary Account Party or party
23
thereto of any of such reimbursement obligations, (ix) any lack of validity or enforceability of
any of such reimbursement obligations against any other Subsidiary Account Party or party
thereto of any of such reimbursement obligations, or (x) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of
this Section 2.02, constitute a legal or equitable discharge of the obligations of the Guarantor or
any Subsidiary Account Party hereunder.
Neither the LC Issuer nor any of its Related Parties shall have any liability or
responsibility by reason of or in connection with the issuance of the Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the circumstances
referred to in the preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or relating to the
Letter of Credit (including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond their control;
provided that the foregoing shall not be construed to excuse the LC Issuer from liability to any
Obligor to the extent of any direct damages (as opposed to consequential, special, indirect and
punitive damages, claims in respect of which are hereby waived by the Obligors to the extent
permitted by applicable law) suffered by such Obligor that are caused by (x) the gross negligence
or willful misconduct of the LC Issuer, as the case may be, or (y) its willful failure to make an
LC Disbursement in respect of any drawing properly made under the Letter of Credit as provided
in Section 2.02(c), 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. The parties hereto
expressly agree that:
(i)the LC Issuer may accept documents that appear on their face to
be in substantial compliance with the terms of the Letter of Credit without
responsibility for further investigation, regardless of any notice or information to the
contrary, and may make payment upon presentation of documents that appear on their
face to be in substantial compliance with the terms of the Letter of Credit;
(ii)the LC Issuer shall have the right, in its sole discretion, to decline
to accept such documents and to make such payment if such documents are not in
strict compliance with the terms of the Letter of Credit; and
(iii)this sentence shall establish the standard of care to be exercised
by the LC Issuer when determining whether drafts and other documents presented
under the Letter of Credit comply with the terms thereof (and the parties hereto hereby
waive, to the extent permitted by applicable law, any standard of care inconsistent with
the foregoing).
(c)Disbursement Procedures. The LC Issuer shall, within a reasonable time
following its receipt thereof, examine all documents purporting to represent a demand for
payment under the Letter of Credit. The LC Issuer shall promptly after such examination notify
the Guarantor (who shall notify the relevant Subsidiary Account Party) by telephone (confirmed
by telecopy) of such demand for payment; provided, however, the failure to provide such notice
24
shall not create any liability for the LC Issuer or in any way limit or diminish the obligations of
the Obligors under the Credit Documents. With respect to any drawing properly made under any
the Letter of Credit the LC Issuer will make an LC Disbursement in respect of the Letter of
Credit in accordance with its liability under the Letter of Credit and this Agreement. The LC
Issuer will make any such LC Disbursement available to the beneficiary of the Letter of Credit
by promptly crediting the amount of the LC Disbursement to the account identified by such
beneficiary in connection with such demand for payment. Promptly following any LC
Disbursement by LC Issuer in respect of any the Letter of Credit, the LC Issuer will notify the
Guarantor (who shall notify the relevant Subsidiary Account Party) of such LC Disbursement;
provided that any failure to give or delay in giving such notice shall not relieve the relevant
Subsidiary Account Party of its obligation to reimburse the LC Issuer with respect to any such
LC Disbursement, the Guarantor of its guarantee pursuant to the Guarantee Agreement, or any of
the relevant Subsidiary Account Party’s or the Guarantor’s obligations hereunder.
(d)Interim Interest. If any LC Disbursement is made, then, unless such LC
Disbursement has been reimbursed in full in cash on the date such LC Disbursement is made
(without regard for when notice thereof is given), the unpaid amount thereof shall bear interest,
for each day from and including the date such LC Disbursement is made to but excluding the
date that the relevant Subsidiary Account Party reimburses such LC Disbursement, at the rate per
annum equal to the Alternate Base Rate plus 1.00%.
(e)Provision of Cover. In the event the Guarantor or the Subsidiary Account
Parties shall have provided (or be required to provide) cash collateral for the outstanding Letter
of Credit pursuant to Section 2.01(d), Section 6.01 or in connection with a Sell-Down Event, the
LC Issuer will establish a separate cash collateral account (the “Collateral Account”), which may
be a “securities account” (as defined in Section 8-501 of the Uniform Commercial Code as in
effect in New York (the “NY UCC”)), in the name and under the sole dominion and control of
the LC Issuer (and, in the case of a securities account, in respect of which the LC Issuer is the
“entitlement holder” (as defined in Section 8-102(a)(7) of the NY UCC)) into which there shall
be deposited from time to time such amounts paid to the LC Issuer as cash collateral for the
applicable LC Exposure. As collateral security for the prompt payment in full in cash when due
of the Obligations and all reimbursement obligations in respect of LC Disbursements, all interest
thereon, and all other obligations of the Obligors under the Credit Documents whether or not
then outstanding or due and payable (such obligations being herein collectively called the
“Secured Obligations”), each Obligor hereby pledges and grants to the LC Issuer, for the benefit
of the LC Issuer as provided herein, a security interest in all of its right, title and interest in and
to the Collateral Account and the balances from time to time in the Collateral Account (including
the investments and reinvestments therein provided for below). The balances from time to time
in the Collateral Account shall not constitute payment of any Secured Obligations until applied
by the LC Issuer as provided herein. Anything in this Agreement to the contrary notwithstanding,
funds held in the Collateral Account shall be subject to withdrawal only as provided in this
Section 2.02(e). Amounts on deposit in the Collateral Account may be held uninvested or be
invested and reinvested by the LC Issuer in such short-term investments as the LC Issuer shall
determine in its sole discretion. All such investments and reinvestments shall be held in the name
and be under the sole dominion and control of the LC Issuer and shall be credited to the
25
Collateral Account. At any time, and from time to time, while an Event of Default has occurred
and is continuing, the LC Issuer may liquidate any such investments and reinvestments and credit
the proceeds thereof to the Collateral Account and apply or cause to be applied such proceeds
and any other balances in the Collateral Account to the payment of any of the Secured
Obligations due and payable. If at any time (i) no Default has occurred and is continuing and (ii)
all of the Secured Obligations then due have been paid in full in cash but the Letter of Credit
remains outstanding, the LC Issuer shall, from time to time, at the request of the Guarantor,
deliver to the relevant Obligor, against receipt but without any recourse, warranty or
representation whatsoever, such of the balances in the Collateral Account as exceed the
aggregate undrawn face amount of the outstanding Letter of Credit. When all of the Secured
Obligations shall have been paid in full in cash and the Letter of Credit has expired or been
terminated, the LC Issuer shall promptly deliver to the Guarantor, for account of the relevant
Obligor, against receipt but without any recourse, warranty or representation whatsoever, the
balances remaining in the Collateral Account.
SECTION 2.03 Benchmark Replacement.
(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 to the Reference Time in respect of any setting of the then-current Benchmark,
then if a Benchmark Replacement is determined in accordance with clause (1) or (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 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.
(b)Notwithstanding anything to the contrary herein or in any other Credit
Document, the LC Issuer will have the right 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 LC Issuer will promptly notify the Guarantor of (1) any occurrence of
a Benchmark Transition Event, (2) the implementation of any Benchmark Replacement, (3) the
effectiveness of any Benchmark Replacement Conforming Changes, (4) the removal or
reinstatement of any tenor of a Benchmark pursuant to clause (d) below and (5) the
commencement or conclusion of any Benchmark Unavailability Period. Any determination,
decision or election that may be made by the LC Issuer pursuant to this Section 2.03, 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 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 2.03.
26
(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 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 LC Issuer 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 or will be no longer representative, then the LC Issuer 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 or will no longer be representative for a Benchmark
(including a Benchmark Replacement), then the LC Issuer 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.
(e)Any determination, decision or election that may be made by the LC
Issuer
pursuant to this Section 2.03, 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, will be conclusive and binding absent manifest
error and may be made in its sole discretion and without consent from any other party hereto,
except, in each case, as expressly required pursuant to this Section 2.03.
(f)The LC Issuer does not warrant or accept any responsibility for, and shall
not have any liability with respect to, the administration of, submission of, calculation of or
availability of or any other matter related to any interest rate used in this Agreement, or with
respect to any alternative or successor rate thereto, or replacement rate thereof, including without
limitation, whether the composition or characteristics of any such alternative, successor or
replacement reference rate will be similar to, or produce the same value or economic equivalence
of, the existing interest rate being replaced or have the same volume or liquidity as did any
interest rate prior to its discontinuance or unavailability.
SECTION 2.04 Fees.
(a)[reserved].
(b)The Guarantor agrees to pay or cause each Subsidiary Account Parties to
pay to the LC Issuer for its own account a letter of credit fee with respect to the Letter of Credit
issued for such Subsidiary Account Party’s account, which shall accrue at a rate separately
agreed in writing among the Obligors and the LC Issuer on the average daily aggregate undrawn
amount of the Letter of Credit during the period of time while the Letter of Credit is outstanding.
Letter of Credit fees accrued through and including each Quarterly Date shall be payable in
arrears on the fifteenth day following such Quarterly Date, commencing on the first Quarterly
27
Date to occur after the Effective Date; provided that all such fees shall be payable on the date on
which the Letter of Credit is terminated.
(c)Each Subsidiary Account Party agrees to pay, on demand, to the LC Issuer
(with respect to the Letter of Credit issued for its account) for its own account, all commissions,
charges, costs and expenses with respect to the issuance, amendment, renewal and extension of
the Letter of Credit and drawings and other transactions relating thereto in amounts reasonably
and customarily charged from time to time in like circumstances by the LC Issuer or, as may be
separately agreed from time to time by the Guarantor and the LC Issuer.
(d)All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the LC Issuer. Fees paid hereunder shall not be refundable under any
circumstances.
SECTION 2.05 [Reserved].
SECTION 2.06 Payments Generally.
(a)The Obligors shall make or cause to be made each payment required to be
made by them hereunder (whether reimbursement of LC Disbursements, fees, amounts under
Article VII or otherwise) or under any other Credit Document (except to the extent otherwise
provided therein) not later than 2:00 p.m., New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts received after such
time on any date may, in the discretion of the LC Issuer, 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 LC Issuer at its Payment Account, except as otherwise expressly provided in
the relevant Credit Document, and except that payments pursuant to Section 8.03 and Article VII
shall be made directly to the Persons entitled thereto. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the next succeeding
Business Day and, in the case of any payment accruing interest, interest thereon shall be payable
for the period of such extension. All payments hereunder or under any other Credit Document
shall be made in Dollars.
(b)If at any time insufficient funds are received by and available to the LC
Issuer to pay fully all amounts of unreimbursed LC Disbursements in respect of the Letter of
Credit or interest thereon and fees then due hereunder, such funds shall be applied (i) first, to pay
interest and fees then due hereunder in respect of such Letters of Credit, (ii) second, to pay such
unreimbursed LC Disbursements then due hereunder and (iii) third, to pay all other Secured
Obligations (other than contingent reimbursement or indemnification obligations as to which no
claim has been asserted).
(c)Amounts owed hereunder which are not paid when due shall accrue
interest
at the Default Rate, such interest to be payable upon demand.
28
SECTION 2.07 Computation of Interest and Fees. Interest based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year) and 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 2.08 Provisions Relating to NAIC Approved Banks. The LC Issuer confirms
that it is, as of the date of this Agreement, listed on the NAIC Approved Bank List.
ARTICLE III CONDITIONS
SECTION 3.01 Each Credit Extension. The obligation of the LC Issuer to issue, amend,
or extend the Letter of Credit is subject to the satisfaction (or waiver in accordance with Section
8.04) of the following conditions:
(a)the conditions precedent to effectiveness set forth in
Section 3.02 shall have
been satisfied (or waived in accordance with Section 8.04) and the Effective Date shall have
occurred and none of the conditions or circumstances in Section 2.01(f) shall be then occurring;
(b)[reserved];
(c)in the event of an amendment that results in a reduction of
the face amount
of the Letter of Credit, receipt by the LC issuer of a notice, dated the date thereof and signed by
the beneficiary of the Letter of Credit, specifying such reduction to the face amount of the Letter
of Credit;
(d)receipt by the LC Issuer of a notice of issuance, amendment
or extension,
as the case may be, as required by Section 2.01(b);
(e)immediately before and after issuance, amendment or
extension of the Letter of Credit no Default or Event of Default shall have
occurred and be continuing; and
(f)the representations and warranties (other than, except with
respect to an
extension of credit on the Effective Date, the representations and warranties in Sections 4.04(d)
and Section 4.05 (in the case of Section 4.05, as to matters that have been disclosed in writing to
the LC Issuer)) of the applicable Obligors contained in this Agreement shall be true and correct
in all material respects on and as of the date of such issuance, amendment or extension of the
Letter of Credit (except that such representations and warranties which are qualified by
materiality or Material Adverse Effect shall be true and correct in all respects) (or, if any such
representation or warranty is expressly stated to have been made as of a specific date, as of such
specific date).
29
Each issuance, amendment or extension of the Letter of Credit hereunder shall be deemed to be a
representation and warranty by the Guarantor on the date of such issuance, amendment or
extension, as the case may be, as to the satisfaction of the conditions specified in clauses (a), (e)
and (f) of this Section 3.01.
SECTION 3.02 Effectiveness. This Agreement shall become effective on the first date
that all of the following conditions shall have been satisfied (or waived in accordance with
Section 8.04):
(a)receipt by the LC Issuer of counterparts of this Agreement
and the Guarantee Agreement signed by each of the Persons listed on the
signature pages hereto and thereto, as applicable;
(b)receipt by the LC Issuer of an opinion of internal and
external counsel to
the Guarantor addressed to it and dated the Effective Date, covering such matters relating to the
Obligors, this Agreement, the Guarantee Agreement or the transactions contemplated hereby as
the LC Issuer shall reasonably request (and the Guarantor hereby requests such counsel to deliver
such opinions);
(c)receipt by the LC Issuer of a certificate, dated the Effective
Date and signed
by a Financial Officer of the Guarantor, certifying: (i) (x) that the representations and warranties
contained in this Agreement shall be true and correct in all material respects on and as of such
date (except that such representations and warranties which are qualified by materiality or
Material Adverse Effect shall be true and correct in all respects) (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific date) and
(y) no Default or Event of Default shall have occurred and be continuing, (ii) as to clause (g) of
this Section 3.02 and (iii) calculations of Adjusted Consolidated Net Worth and Consolidated
Total Indebtedness to Consolidated Total Capitalization calculated as of the last day of the most
recently ended fiscal quarter for which financial statements of the Guarantor are available;
(d)receipt by the LC Issuer of such documents and certificates
as the LC Issuer
may reasonably request relating to the organization, existence and good standing of the Obligors,
the authorization of the transactions contemplated hereby and any other legal matters relating to
each of the Obligors, this Agreement, the Guarantee Agreement or the transaction contemplated
hereby, all in form and substance reasonably satisfactory to the LC Issuer, including a certified
copy of the resolutions (or equivalent approvals) of the Board of Directors (or equivalent
governing body) of each Obligor, in form and substance reasonably satisfactory to the LC Issuer,
authorizing the execution, delivery and performance of this Agreement and other Credit
Documents;
(e)at least five (5) days prior to the Effective Date, (i) receipt
by the LC Issuer
30
of all documents, instruments and other information regarding any Obligor as it may reasonably
request in connection with applicable “know your customer” and anti-money laundering rules
and regulations, including the Patriot Act, to the extent requested from the Guarantor at least ten
(10) days prior to the Effective Date and (ii) to the extent that any Obligor qualifies as a “legal
entity customer” under the Beneficial Ownership Regulation, the LC Issuer that has requested, in
a written notice to the Guarantor at least ten (10) days prior to the Effective Date, a Beneficial
Ownership Certification in relation to the applicable Obligor shall have such Beneficial
Ownership Certification;
(f)receipt by the LC Issuer of evidence as of the Effective
Date as to payment
of all fees required to be paid, and all expenses required to be paid or reimbursed for which
invoices have been presented (including, without limitation, fees and disbursements of counsel to
the LC Issuer required to be paid as of the Effective Date and invoiced at least three (3) Business
Days prior to the Effective Date) in connection with this Agreement, on or before the Effective
Date; and
(g)there shall not have occurred a material adverse change
since December 31, 2022 in the business, financial condition or operations of the
Guarantor and its Consolidated Subsidiaries, taken as a whole.
The LC Issuer shall promptly notify the Guarantor of the Effective Date, and such notice shall be
conclusive and binding on all parties hereto.
ARTICLE IV REPRESENTATIONS AND WARRANTIES
On the Effective Date and each other date as required by the Credit Documents, the
Guarantor represents and warrants that:
SECTION 4.01 Corporate Existence and Power. The Guarantor (a) is a corporation duly
incorporated and validly existing under the laws of the State of Delaware, (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; Contravention. The
execution, delivery and performance by each Obligor of this Agreement and the other Credit
Documents to which it is a party are within such Obligor’s corporate, limited liability or
partnership powers, have been duly authorized by all necessary corporate, limited liability
company or partnership action, 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 do not contravene, or constitute a default under, any provision of (x)
31
applicable law or regulation, (y) the articles of incorporation or by-laws or other constituent
documents of such Obligor or (z) any material agreement, judgment, injunction, order, decree or
other instrument binding upon any Obligor or any Material Subsidiary or result in the creation or
imposition of any Lien on any asset of any Obligor 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 and the other Credit Documents to
which it is a party constitute the legal, valid and binding obligations of each of the Obligors, 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.
SECTION 4.04 Financial Information; No Material Adverse Change.
(a)The consolidated balance sheets of the Guarantor and its Consolidated
Subsidiaries, and the related consolidated statements of income, cash flows and shareholders’
equity for the fiscal year ended December 31, 2022, reported on by PricewaterhouseCoopers,
copies of which have been delivered to the LC Issuer, fairly present, in conformity with generally
accepted accounting principles, the consolidated financial position of the Guarantor and its
Consolidated Subsidiaries as of such date and their consolidated results of operations and
changes in financial position for the period covered by such financial statements.
(b)The audited consolidated balance sheets of the Guarantor and its
Consolidated Subsidiaries as of September 30, 2023 and the related unaudited consolidated
statements of income, cash flows and shareholders’ net investment for the period then ended,
copies of which have been delivered to the LC Issuer, fairly present, in conformity with generally
accepted accounting principles applied on a basis consistent with the financial statements
referred to in subsection (a) of this Section 4.04, the consolidated financial position of the
Guarantor and its Consolidated Subsidiaries as of such date and their consolidated results of
operations and changes in financial position for such period (subject to normal year-end
adjustments and, to the extent permitted by Regulation S-X, the absence of footnotes).
(c)A copy of a duly completed and signed annual Statutory Statement or
other
similar report of or for each Insurance Subsidiary that is a Material Subsidiary or Subsidiary
Account Party (other than EQ AZ) in the form filed with the governmental body, agency or
official which regulates insurance companies in the jurisdiction in which such Insurance
Subsidiary is domiciled for the year ended December 31, 2022 has been delivered to the LC
Issuer and fairly presents, in accordance with statutory accounting principles, the information
contained therein.
(d)Except as set forth in the Guarantor’s Form 10-K for the fiscal year ended
December 31, 2022, since December 31, 2022, there has been no material adverse change in the
32
business, financial condition or operations of the Guarantor and its Consolidated Subsidiaries,
considered as a whole.
SECTION 4.05 Litigation. Except as set forth in the sections entitled “Legal
Proceedings” of the Guarantor’s Form 10-K for the fiscal year ended December 31, 2022 or
Form 10-Q for the quarter ended September 30, 2023, there is no action, suit or proceeding
pending, or to the knowledge of the Guarantor threatened, against any of the Obligors or any of
the Guarantor’s Material Subsidiaries before any court or arbitrator or any governmental body,
agency or official (a) which has or would be reasonably expected to have a Material Adverse
Effect or (b) which in any manner draws into question the validity or enforceability of this
Agreement or any other Credit Document. The Guarantor has reasonably concluded that its, its
Material Subsidiaries’ and the Subsidiary Account Parties’ compliance with Environmental Laws
is unlikely to result in a Material Adverse Effect.
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 Guarantor) 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 Taxes. The Guarantor and its Subsidiaries have filed all income tax
returns and all other material tax returns which are required to be filed by them and have paid all
taxes due pursuant to such returns or pursuant to any assessment received by the Guarantor or
any Subsidiary, except for any such taxes that are being contested in good faith by appropriate
proceedings and for which adequate reserves have been made (or the Guarantor or such
Subsidiary has determined in its reasonable discretion that no reserve is required), or except in
each case to the extent that the failure to do so would not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.08 Subsidiaries. Each of the Guarantor’s Material Subsidiaries and each
Subsidiary Account Party (a) is a corporation or limited liability company that is duly
incorporated or organized, validly existing and (except where such concept is not applicable) in
good standing under the laws of its jurisdiction of incorporation or formation, (b) has all
corporate or limited liability power (as applicable) and authority and all material governmental
licenses, authorizations, consents and approvals, in each case, required 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
33
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) and (c) to the extent that such failure to do so
would not reasonably be expected to have a Material Adverse Effect.
SECTION 4.09 Not an Investment Company. None of the Obligors or the Material
Subsidiaries is an “investment company” within the meaning of the Investment Company Act of
1940, as amended.
SECTION 4.10 Obligations to be Pari Passu. The obligations of each Obligor under this
Agreement and each other Credit Document to which it is a party rank pari passu as to priority of
payment and in all other respects with all other material unsecured and unsubordinated Debt of
such Obligor, with the exception of those obligations that are mandatorily preferred by law and
not by contract.
SECTION 4.11 No Default. No event has occurred and is continuing which constitutes,
or which, with the passage of time or the giving of notice or both, would constitute, a default
under or in respect of any material agreement, instrument or undertaking to which any Obligor or
any Material Subsidiary is a party or by which any Obligor or any Material Subsidiary or any of
their respective assets is bound, unless such default would not have or be reasonably expected to
have a Material Adverse Effect.
SECTION 4.12 Material Subsidiaries and Subsidiary Account Parties. Set forth as
Schedule I hereto is a true, correct and complete list of each Material Subsidiary and Subsidiary
Account Party, in each case designated as such, as of the date hereof.
SECTION 4.13 Full Disclosure. None of the reports, financial statements, certificates or
other written information furnished by or on the behalf of the Guarantor to the LC Issuer 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),
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 misleading
as of the date made; provided that, (i) with respect to projected or pro forma financial
information, the Guarantor 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 uncertainties and contingencies and no assurances
can be given that such projections or forecasts will be realized) and (ii) with respect to
statements, information and reports derived from Persons unaffiliated with the Guarantor, the
Guarantor represents that it has no knowledge of any material misstatement therein. If applicable,
as of the Effective Date, to the best knowledge of the Guarantor, the information included in any
Beneficial Ownership Certification provided on or prior to the Effective Date to the LC Issuer in
connection with this Agreement is true and correct in all respects.
SECTION 4.14 Hybrid Instruments. Set forth as Schedule II hereto is a true, correct and
complete list of each Hybrid Instrument of the Guarantor and its Consolidated Subsidiaries
outstanding as of the date hereof, specifying in each case the equity credit treatment given to
each such Hybrid Instrument by S&P and/or Moody’s as of the Effective Date.
34
SECTION 4.15 Margin Regulations. The Letter of Credit will not be used, whether
directly or indirectly, for any purpose that entails a violation of any of the Regulations of the
FRB, including Regulations T, U and X. After the issuance of the Letter of Credit hereunder, not
more than 25% of the value (as determined by any reasonable method) of the assets of any of the
Obligors is represented by Margin Stock.
SECTION 4.16 Sanctioned Persons; Anti-Corruption Laws; Patriot Act. None of the
Guarantor or any of its Subsidiaries or, to the knowledge of the Guarantor, any of their respective
directors, officers, employees or agents is 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 European Union, France 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”). Each of the
Guarantor and its Subsidiaries and their respective directors, officers and, to the knowledge of
the Guarantor, 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, “AntiCorruption 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 terrorism and money laundering laws, rules, regulations and orders (collectively,
“Anti-Money Laundering Laws”), except in each case to the extent that such non-compliance
therewith would not reasonably be expected to have a Material Adverse Effect or reasonably be
expected to result in the LC Issuer violating any such Sanctions Laws, Anti-Corruption Laws or
Anti-Money Laundering Laws. No part of the Letter of Credit will be used by any Obligor,
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 Sanction 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.
SECTION 4.17 EEA Financial Institutions. No Obligor is an EEA Financial Institution.
ARTICLE V COVENANTS
Until the Letter of Credit shall have expired or terminated or been cash collateralized to
the satisfaction of the LC Issuer and all Secured Obligations shall have been paid in full in cash
(other than contingent reimbursement or indemnification obligations as to which no claim has
been asserted), the Guarantor agrees that:
SECTION 5.01 Information.
The Guarantor will deliver to each of the LC Issuer:
(a)on or before the date on which such financial statements are required to be
35
filed with the SEC (or, if the Guarantor is not required to file such financial statements with the
SEC, no later than 90 days after the end of each fiscal year of the Guarantor), the consolidated
balance sheet of the Guarantor and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, cash flows and shareholders’ equity for such
fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year,
all reported on in a manner acceptable to the SEC by PricewaterhouseCoopers LLP or other
independent public accountants of nationally recognized standing;
(b)on or before the date on which such financial statements are required to be
filed with the SEC (or, if the Guarantor is not required to file such financial statements with the
SEC, 45 days after the end of each of the first three (3) quarters of each fiscal year of the
Guarantor), the consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as
of the end of each quarter and the related consolidated statements of income, cash flows and
shareholders’ equity for such quarter and for the portion of the Guarantor’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 Guarantor’s previous fiscal year, all
certified (subject to normal year-end adjustments and, to the extent permitted by Regulation S-X,
the absence of footnotes) as to fairness of presentation, generally accepted accounting principles
and consistency with the most recent audited consolidated financial statements of the Guarantor
and its Consolidated Subsidiaries delivered to the LC Issuer (except for changes concurred in by
the Guarantor’s independent public accountants) by a Financial Officer;
(c)(I) substantially concurrently with the delivery of each set of financial
statements referred to in clauses (a) and (b) above a certificate of a Financial Officer of the
Guarantor (i) setting forth in reasonable detail the calculations required to establish whether the
Guarantor was in compliance with the requirements of Section 5.07 on the date of such financial
statements, (ii) stating that such Financial Officer, as the case may be, has no knowledge of any
Default existing on the date of such certificate or, if such Financial Officer has knowledge of the
existence on such date of any Default, setting forth the details thereof and the action which the
Guarantor is taking or proposes to take with respect thereto, and (iii) a reconciliation to such
financial statements of any inclusions to, or exclusions from, the calculations of Adjusted
Consolidated Net Worth, Consolidated Total Indebtedness and Consolidated Total
Capitalization, and (II) simultaneously with the delivery of each set of financial statements
referred to in clause (a) and (b) above a certificate of a Financial Officer of the Guarantor
specifying any changes to the list of Material Subsidiaries as of the last day of the fiscal period to
which such financial statements relate;
(d)within ten (10) days after the required date for filing with such
governmental body, agency or official (after giving effect to any extensions granted by such
governmental body, agency or official), 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 or a Subsidiary Account Party with the governmental body, agency or
official which regulates insurance companies in the jurisdiction in which such Insurance
Subsidiary is domiciled, in the form submitted to such governmental body, agency or official;
36
(e)within ten (10) days after the required date for filing with such
governmental body, agency or official (after giving effect to any extensions granted by such
governmental body, agency or official), 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 or a Subsidiary Account Party with the governmental
body, agency or official which regulates insurance companies in the jurisdiction in which such
Insurance Subsidiary is domiciled, in the form submitted to such governmental body, agency or
official (it being understood and agreed that the Obligors shall have no obligation to deliver
quarterly Statutory Statements if the filing of quarterly Statutory Statements is not required by
the applicable government agency, body or official);
(f)within five (5) Business Days of any Financial Officer of the Guarantor
learning of the occurrence of any Default, a certificate of a Financial Officer of the Guarantor
setting forth the details thereof and the action which the Guarantor is taking or proposes to take
with respect thereto;
(g)promptly upon the filing thereof, copies of all registration statements
(other
than the exhibits thereto and any registration statements on Form S-8 or its equivalent) and
reports on Forms 10-K, 10-Q and 8-K (or their equivalents) which the Guarantor shall have filed
with the SEC;
(h)promptly after Moody’s or S&P shall have announced a change in the
rating
established or deemed to have been established for the Index Debt, written notice of such rating
change;
(i)except to the extent prohibited by applicable law, regulatory policy, or
regulatory restriction (as determined in the reasonable good faith judgment of the Guarantor),
from time to time such additional information regarding the financial position or business of the
Guarantor as the LC Issuer may reasonably request; provided that neither the Guarantor nor any
of its Subsidiaries shall be required to disclose any (i) trade secrets of the Guarantor 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 Guarantor or any of its Subsidiaries to be in
breach of such obligations;
(j)promptly following any reasonable request therefor, information necessary
for the LC Issuer to comply with applicable “know your customer” and anti-money laundering
rules and regulations including the Patriot Act and, to the extent the Guarantor qualifies as a
“legal entity customer” under the Beneficial Ownership Regulation, the Beneficial Ownership
Regulation, in each case, as the LC Issuer may reasonably request; and
(k)concurrent with or prior to the delivery of the certificate delivered
pursuant
37
to Section (c)(I) for the next fiscal quarter ended after the date of the Reinsurance Transaction,
written documentation that details the cumulative impact on the consolidated shareholders’
equity, determined in accordance with GAAP, of the Guarantor and its Consolidated Subsidiaries
as of such date from the effect on Accumulated Other Comprehensive Income resulting from the
asset transfers completed at the closing of the Reinsurance Transaction.
Documents required to be delivered pursuant to Section 5.01 (a), (b), (d), (e), (g) or (k)
may be delivered electronically on the following Internet websites: (a) the Guarantor’s website at
an address to be designated in writing to the LC Issuer, (b) with respect to Section 5.01(a), (b),
(g) or (k) the SEC’s website 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 Guarantor in a notice to the LC Issuer and that is accessible by the LC Issuer
without charge, and in each case if so delivered shall be deemed to have been delivered on the
date such materials are publicly available; provided that (i) the Guarantor shall deliver electronic
copies of such information to the LC Issuer promptly upon the request of the LC Issuer and (ii)
the Guarantor shall have notified the LC Issuer of the posting of such documents delivered
pursuant to Section 5.01(a), (b), (d) and (e).
SECTION 5.02 Payment of Obligations. Each Obligor will pay and discharge, and the
Guarantor will cause each Material Subsidiary to pay and discharge, at or before maturity, all
their respective material obligations and liabilities, including, without limitation, tax liabilities,
that if not paid, would reasonably be expected to result in a Material Adverse Effect, except
where (a) the same may be contested in good faith by appropriate proceedings, (b) such Obligor
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; provided that, for avoidance of doubt, solely with respect to tax liabilities, an obligation
shall be considered to be delinquent or in default for purposes of this Section only if there has
first been notice and demand therefore (as defined in Section 6306 of the Code and similar
provisions of applicable law) by a tax authority.
SECTION 5.03 Conduct of Business and Maintenance of Existence. The Guarantor will
continue, and will cause each Material Subsidiary and Subsidiary Account Party 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 and Subsidiary Account Party to preserve, renew and keep in
full force and effect (a) their respective corporate existence and (b) their respective rights,
privileges, licenses and franchises, other than, in the case of the foregoing clause (b), the loss of
which would not reasonably be expected to result in a Material Adverse Effect; except that if at
the time thereof and immediately after giving effect thereto no Default has occurred and is
continuing, (i) any Subsidiary may merge with or into the Guarantor, provided that the Guarantor
shall be the surviving entity, (ii) any Material Subsidiary or Subsidiary Account Party may merge
with or into any other Subsidiary, provided that such Material Subsidiary or Subsidiary Account
Party shall be the surviving entity or, if such Material Subsidiary or Subsidiary Account Party is
not the surviving entity, the surviving entity shall be deemed to be a Material Subsidiary or
38
caused to become a Subsidiary Account Party in accordance with Section 8.11, as applicable, (iii)
any Material Subsidiary or Subsidiary Account Party may sell, transfer, lease or otherwise
dispose of its assets to the Guarantor or to another Material Subsidiary or Subsidiary Account
Party and (iv) the Guarantor or any Subsidiary Account Party may merge or consolidate with
another Person in accordance with the terms of Section 5.09. Notwithstanding the foregoing, the
Guarantor may liquidate or dissolve any Subsidiary (other than the Subsidiary Account Party) if
(i) the board of directors of the Guarantor determines in good faith that such liquidation or
dissolution is in the best interests of the Guarantor and its Subsidiaries, taken as a whole, and (ii)
the assets of such liquidated or dissolved Subsidiary are received by (x) in the case of the
liquidation or dissolution of a Material Subsidiary, a Material Subsidiary or the Guarantor, (y) in
the case of the liquidation or dissolution of a Subsidiary Account Party, a Subsidiary Account
Party or the Guarantor or (z) in the case of any other liquidation or dissolution, a Subsidiary or
the Guarantor.
SECTION 5.04 Maintenance of Property; Insurance.
(a)The Guarantor will keep, and will cause each Material Subsidiary and
Subsidiary Account Party 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 Guarantor will maintain, and will cause each Material Subsidiary and
Subsidiary Account Party to maintain (either in the name of the Guarantor or in such
Subsidiary’s own name) with financially sound and responsible insurance companies, 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 Guarantor and its
Material Subsidiaries and Subsidiary Account Parties; and the Guarantor will furnish to the LC
Issuer, upon request, information presented in reasonable detail as to the insurance so carried.
SECTION 5.05 Compliance with Laws. The Guarantor 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 have a Material
Adverse Effect and (B) in the case of the laws, rules, regulations and orders referred to in Section
4.16, reasonably be expected to result in the LC Issuer violating such laws, rules, regulations or
orders.
SECTION 5.06 Inspection of Property, Books and Records. The Guarantor will keep,
and will cause each Material Subsidiary and Subsidiary Account Party 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 dealings and transactions in relation to its business and activities; and, subject in all
cases to Section 8.09, will permit, and will cause each Material Subsidiary and Subsidiary
Account Party to permit, representatives of the LC Issuer to visit and inspect any of their
39
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 Guarantor, unless an Event of Default shall have occurred
and be continuing, in which case such inspection rights may be exercised as often as the LC
Issuer desires and at the expense of the Guarantor; provided, further, that neither the Guarantor
nor any of its Subsidiaries shall be required to disclose any (i) trade secrets of the Guarantor 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 Guarantor or any of its Subsidiaries to be in
breach of such obligations.
SECTION 5.07 Financial Covenants.
(a)Minimum Adjusted Consolidated Net Worth. From and after the
Amendment No. 1 Effective Date, the Guarantor will not permit its Adjusted Consolidated Net
Worth, calculated as of the end of each fiscal quarter, to be less than an amount equal to the sum
of (i) $6,804,200,000 plus (ii) 50% of the aggregate amount of the Net Proceeds of Equity
Issuances by the Guarantor and its Subsidiaries after March 31, 2025; provided, that if the
Reinsurance Transaction is consummated within one (1) year after the Amendment No. 1
Effective Date (the date on which such transaction has been consummated, the “Reset Event”),
the foregoing amount shall from and after such Reset Event be equal to the sum of (x) a fixed
dollar amount equal to 65% of the actual Adjusted Consolidated Net Worth as of the end of the
fiscal quarter in which the Reset Event occurred plus (y) 50% of the aggregate amount of the Net
Proceeds of Equity Issuances by the Guarantor and its Subsidiaries after the end of such fiscal
quarter.
(b)Total Indebtedness to Total Capitalization Ratio. From and after the
Amendment No. 1 Effective Date, the Guarantor will not permit the ratio of (a) Consolidated
Total Indebtedness to (b) Consolidated Total Capitalization to exceed 0.40 to 1.00, calculated as
of the last day of each fiscal quarter.
SECTION 5.08 Negative Pledge. The Guarantor will not, and will not permit any
Subsidiary to, create or suffer to exist any Lien upon 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 Guarantor or any Insurance Subsidiary). 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, Divisions, and Sales of Assets. No Obligor
will (i) consolidate or merge with or into any other Person, or consummate a Division as the
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Dividing Person or (ii) sell, lease or otherwise transfer, directly or indirectly, all or substantially
all of the assets of the Guarantor and its Subsidiaries, taken as a whole, to any other Person;
provided that the Guarantor or any Subsidiary Account Party may merge or consolidate with
another Person if (x) the Guarantor or such Subsidiary Account Party, as applicable, is the
corporation surviving such merger or consolidation or, in the case of a merger or consolidation
by a Subsidiary Account Party with and into another Person where such other Person is the
surviving entity, such Person meets the requirements for a Subsidiary Account Party set out in
Section 8.11 and is or becomes a Subsidiary Account Party pursuant to Section 8.11 and (y)
immediately after giving effect to such merger or consolidation, no Default shall have occurred
and be continuing.
SECTION 5.10 Use of Credit. The Letter of Credit shall be used only to support
reinsurance among the Guarantor and its Subsidiaries. The Letter of Credit will not be used,
whether directly or indirectly, for any purpose that entails a violation of any of the Regulations of
the FRB, including Regulations T, U and X.
SECTION 5.11 Obligations to be Pari Passu. The obligations of each Obligor under this
Agreement and the other Credit Documents to which it is a party will rank at all times pari passu
as to priority of payment and in all other respects with all other material unsecured and
unsubordinated Debt of the such Obligor, with the exception of those obligations that are
mandatorily preferred by law and not by contract.
SECTION 5.12 Certain Debt. The Guarantor will not at any time permit the sum of (i)
Non-Operating Indebtedness of the Guarantor that is secured by a Lien on any property or assets
of the Guarantor and its Subsidiaries and (ii) Non-Operating Indebtedness of the Subsidiaries of
the Guarantor to exceed $500,000,000, except (a) Debt set forth in Schedule III hereto, (b) Debt
of any Subsidiary of the Guarantor owing to the Guarantor or another Subsidiary of the
Guarantor and (c) additional Debt not permitted by the immediately preceding clauses (ii)(a) or
(b) consisting of surplus notes issued by Subsidiaries of the Guarantor that are operating
Insurance Subsidiaries in an aggregate amount of up to $1,000,000,000 outstanding at any time.
ARTICLE VI DEFAULTS
SECTION 6.01 Events of Default. If one or more of the following events (“Events of
Default”) shall have occurred:
(a)(i) any Obligor shall fail to pay when due any reimbursement obligation in
respect of an LC Disbursement or (ii) any Obligor shall fail to pay when due any interest on any
LC Disbursement or any fees or any other amounts payable hereunder and such failure under this
clause (ii) shall continue for five Business Days;
(b)any Obligor shall fail to observe or perform any covenant contained in
Sections 5.01(f), 5.03(a), 5.07 through 5.12, inclusive, or its obligation to provide cash collateral
pursuant to the last sentence of Section 2.01(d);
(c)any Obligor shall fail to observe or perform any covenant or agreement
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contained in this Agreement or the other Credit Documents (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given to the Guarantor by the
LC Issuer;
(d)any representation, warranty, certification or statement made by any
Obligor 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);
(e)any Obligor or any Material Subsidiary shall (i) fail to make any payment
in respect of any Debt (other than extensions of credit hereunder) having a principal amount then
outstanding of not less than $200,000,000 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, for the avoidance of doubt, 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 any Obligor or Material Subsidiary owing Material Unpaid Derivative Product
Indebtedness in an aggregate principal amount exceeding $200,000,000, 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 extensions of credit hereunder) having a principal or face
amount then outstanding of not less than $200,000,000 of any Obligor 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 $200,000,000;
(g)any Obligor 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 any
Obligor 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
42
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 60 days; or an order for relief shall be entered against
any Obligor 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 any Obligor or any Material Subsidiary or of the assets or any substantial part
thereof of any Obligor and any Material Subsidiary or any other similar remedy;
(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;
(j)a judgment or order for the payment of money in excess of $200,000,000
(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 any Obligor or a Material Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a period of 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 payment in
full in cash of the Secured Obligations (other than contingent reimbursement or indemnification
obligations as to which no claim has been asserted) in accordance with the terms hereof
(including, without limitation, the termination of the Letter of Credit)) or shall be declared null
and void, for any reason other than the failure of the LC Issuer to take any action within its
control; or (ii) any Obligor 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 LC Issuer, 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
43
such event, the LC Issuer may, by notice to the Guarantor take any or all of the following actions,
at the same or different times: (i) [reserved], (ii) declare all accrued interest, fees and other
obligations of the Obligors to be due and payable, and thereupon the accrued interest and all fees
and other obligations of the Guarantor 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 Guarantor, (iii) demand cash collateral from the relevant Obligors in
immediately available funds in an amount equal to the then aggregate undrawn amount of the
Letter of Credit pursuant to Section 2.02(e) and (iv) enforce any remedies in respect of assets
subject to a security interest in favor of the LC Issuer, including applying any cash collateral to
repay any outstanding Obligations; provided that, in the case of any of the Events of Default
specified in clause (g) or (h) above with respect to the Guarantor, without any notice to the
Guarantor or any other act by the LC Issuer, any accrued interest and all fees and other
obligations of the Guarantor accrued hereunder, and the obligations to provide cash collateral
under clause (iii) above, shall automatically become due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby waived by the Guarantor.
ARTICLE VII CHANGE IN CIRCUMSTANCES
SECTION 7.01 Increased Cost and Reduced Return.
(a)Except with respect to the taxes which are governed solely by Section
7.02,
if on or after the date hereof, in the case of the Letter of Credit or any obligation to issue, renew
or extend the Letter of Credit, 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 the LC Issuer (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, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System), special deposit, compulsory loan, insurance
assessment or similar requirement against assets of, deposits with or for the account of, or credit
extended by, the LC Issuer (or its Applicable Lending Office), shall impose on the LC Issuer (or
its Applicable Lending Office) or its obligation to issue the Letter of Credit, the outstanding
Letter of Credit or reimbursement claims in respect of LC Disbursements, or shall subject the LC
Issuer (or its Applicable Lending Office) to any taxes not governed by Section 7.02 on its letters
of credit, commitments or other obligations and the result of any of the foregoing is to increase
the cost or expense to the LC Issuer (or its Applicable Lending Office) of issuing or maintaining
the Letter of Credit, or to reduce the amount of any sum received or receivable by the LC Issuer
(or its Applicable Lending Office) under this Agreement or under other Credit Document with
respect thereto, by an amount deemed by the LC Issuer to be material, then, within 15 days after
demand by the LC Issuer, the Guarantor shall pay to the LC Issuer such additional amount or
amounts as will compensate the LC Issuer for such increased cost or reduction.
44
(b)If the LC Issuer shall have determined that, after the Effective 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 the
LC Issuer (or its Parent) as a consequence of the LC Issuer’s obligations hereunder to a level
below that which the LC Issuer (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 the LC Issuer to be material, then from time to
time, within 15 days after demand by the LC Issuer, the Guarantor shall pay to the LC Issuer
such additional amount or amounts as will compensate the LC Issuer (or its Parent) for such
reduction. Notwithstanding anything to the contrary in this Section 7.01, the Guarantor shall not
be required to compensate the LC Issuer pursuant to Section 7.01(a) or (b) for any amounts
incurred more than 270 days prior to the date that the LC Issuer notifies the Guarantor of the LC
Issuer’s intention to claim compensation therefor, to the extent the LC Issuer 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)The LC Issuer will promptly notify the Guarantor of any event of which it
has knowledge, occurring after the date hereof, which will entitle the LC Issuer to compensation
pursuant to this Section 7.01; provided, however, subject to the final sentence of Section 7.01(b),
the failure to provide such notice shall not create any liability for the LC Issuer hereunder nor
shall it in any way limit the obligations of the Obligors hereunder. A certificate of the LC Issuer
claiming compensation under this Section 7.01 and setting forth the additional amount or
amounts to be paid to it hereunder and, in reasonable detail, the LC Issuer’s computation of such
amount or amounts, shall be conclusive in the absence of manifest error. In determining such
amount, the LC Issuer may use any reasonable averaging and attribution methods.
(d)Notwithstanding anything herein to the contrary, for purposes of this
Section 7.01, (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 LC Issuer 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 Effective Date, regardless of the date
enacted, adopted or issued; provided that the LC Issuer shall not demand compensation pursuant
to this Section 7.01 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 the LC Issuer to demand such compensation from similarly situated
45
borrowers (to the extent that, with respect to such increased cost or reduced return, the LC Issuer
has the right to do so under its credit facilities with similarly situated borrowers).
SECTION 7.02 Taxes.
(a)For purposes of this Section 7.02, the following terms have the following
meanings:
“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 are 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.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or
with respect to any payment by the Guarantor pursuant to this Agreement or any other Credit
Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Other Taxes” means any present or future stamp or documentary taxes and any
other excise, intangible, recording, filing 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.
“Taxes” means any and all present or future taxes, duties, levies, imposts,
deductions, charges or withholdings of any nature with respect to any payment by the Guarantor
pursuant to this Agreement or any other Credit Document, and all liabilities with respect thereto,
but excluding, in the case of the LC Issuer, (i) 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 the LC Issuer is organized or in which its principal executive office is
located or, in the case of the LC Issuer, in which its Applicable Lending Office is located, (ii)
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 such recipient and the
jurisdiction (or any political subdivision thereof) imposing such taxes, other than connections
arising solely as a result of the recipient’s execution and delivery of this Agreement, the making
of any extension of credit or receipt of payments hereunder or the performance of any action
provided for hereunder, (iii) in the case of the LC Issuer, U.S. federal withholding taxes imposed
on amounts payable to or for the account of the LC Issuer with respect to an applicable interest in
this Agreement pursuant to a law in effect on the date on which the LC Issuer acquires such
interest in this Agreement or the LC Issuer changes its lending office, except in each case to the
extent that, pursuant to this Section 7.02, amounts with respect to such taxes were payable either
to the LC Issuer’s assignor immediately before the LC Issuer became a party hereto or to the LC
Issuer immediately before it changed its lending office, (iv) taxes attributable to such recipient’s
46
failure to comply with Section 7.02(d) or Section 7.02(e) and any U.S. federal backup
withholding Tax, and (v) any U.S. Federal withholding Taxes imposed by FATCA (all such
excluded taxes enumerated in (i)–(v), “Excluded Taxes”). If the form provided by the LC Issuer
pursuant to Section 7.02(d) at the time the LC Issuer first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess of zero, any United States interest
withholding tax at such rate imposed on payments by the Guarantor under this Agreement or any
other Credit Document shall be excluded from the definition of “Taxes”.
“Withholding Agent” means the Guarantor.
(b)Any and all payments by any Withholding Agent to or for the account of
the LC Issuer hereunder or under any other Credit Document shall be made free and clear and
without deduction or withholding for any Taxes or Other Taxes; provided that, if any
Withholding Agent shall be required by law to deduct any Taxes or Other Taxes from any such
payments (for the avoidance of doubt, other than Excluded Taxes), (i) the sum payable by the
Guarantor 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 7.02) the LC Issuer receives an amount equal to the sum it would have
received had no such deductions or withholdings been made, (ii) such Withholding Agent (as the
case may be) shall make such deductions or withholdings, (iii) such Withholding Agent (as the
case may be) shall pay the full amount deducted or withheld to the relevant taxation authority or
other authority in accordance with applicable law and (iv) the Guarantor shall promptly furnish
to the LC Issuer, at its address referred to in Section 8.01, the original or a certified copy of a
receipt evidencing payment thereof.
(c)The Guarantor agrees to indemnify the LC Issuer for the full amount of
Taxes or Other Taxes, for the avoidance of doubt, other than Excluded Taxes, (including,
without limitation, any Taxes or Other Taxes imposed or asserted on amounts payable under this
Section 7.02), whether or not correctly or legally imposed, paid by the LC Issuer and reasonable
expenses arising therefrom or with respect thereto. This indemnification shall be paid within 30
days after LC Issuer makes demand therefor. Notwithstanding anything herein to the contrary,
the Guarantor shall not be under any obligation to indemnify the LC Issuer under this Section
7.02 with respect to (i) any amounts withheld or deducted by the Guarantor prior to the date that
is 270 days prior to the date that the LC Issuer makes a written demand therefor or (ii) any
Indemnified Taxes paid by the LC Issuer if written demand therefor is made to the Guarantor on
a date that is 270 days after the date the LC Issuer filed the tax return with respect to which such
Indemnified Taxes relate.
(d)If the LC Issuer is entitled to an exemption from or reduction of
withholding Tax with respect to payments made under any Credit Document, the LC Issuer shall
deliver to the Guarantor, at the time or times reasonably requested by the Guarantor, such
properly completed and executed documentation reasonably requested by the Guarantor as will
permit such payments to be made without withholding or at a reduced rate of withholding. In
addition, the LC Issuer, if reasonably requested by the Guarantor, shall deliver such other
documentation prescribed by applicable law or reasonably requested by the Guarantor as will
47
enable the Guarantor to determine whether or not the LC Issuer is subject to backup withholding
or information reporting requirements. Without limiting the generality of the foregoing, on or
prior to the date of this Agreement, (i) LC Issuer, if it is not incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to the Guarantor two duly
completed copies of United States Internal Revenue Service Form W-8BEN, W-8BEN-E,
W-8IMY or W-8ECI (as applicable), certifying in either case that the LC Issuer is entitled to
receive payments under this Agreement without or with reduced deduction or withholding of any
United States federal income taxes, and (ii) the LC Issuer, if it is incorporated under the laws of
the United States of America or a state thereof agrees that it will deliver to the Guarantor two
duly completed copies of United States Internal Revenue Service Form W-9. The LC Issuer, if it
so delivers a Form W-9, W-8BEN, W-8BEN-E, W-8IMY or W-8ECI (as applicable) further
undertakes to deliver to the Guarantor two additional copies of such form (or successor form) on
or before the date that such form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the Guarantor certifying
that the LC Issuer is entitled to receive payments under this Agreement without or with reduced
deduction or withholding of any United States federal income taxes, unless the LC Issuer
promptly notifies the Guarantor in writing of its legal inability to do so.
(e)If a payment made to the LC Issuer under any Credit Document would be
subject to U.S. federal withholding tax imposed by FATCA if the LC Issuer fails to comply with
the applicable reporting requirements of FATCA (including those contained in Section 1471(b)
or 1472(b) of the Code, as applicable), the LC Issuer shall deliver to the Guarantor and the
Withholding Agent at the time prescribed by law and at such times reasonably requested by the
Withholding Agent or the Guarantor 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 Withholding Agent or the Guarantor sufficient for the Withholding
Agent to comply with its obligations under FATCA and to determine that the LC Issuer has
complied with such applicable reporting requirements or to determine the amount to deduct and
withhold from such payment. Solely for purposes of this clause (e), “FATCA” shall include any
amendments made to FATCA after the date of this Agreement. The LC Issuer 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 Guarantor and the
Withholding Agent in writing of its legal inability to do so.
(f)For any period with respect to which the LC Issuer has failed to provide
the Guarantor with the appropriate form as required by Section 7.02(d) or Section 7.02(e)
(whether or not the LC Issuer is lawfully able to do so, unless such failure is due to a change in
treaty, law or regulation occurring subsequent to the date on which such form originally was
required to be provided), the LC Issuer shall not be entitled to indemnification under Section
7.02 (b) or (c) with respect to any withholding of the United States federal income tax resulting
from such failure; provided that if the LC Issuer, which is otherwise exempt from or subject to a
reduced rate of withholding tax, becomes subject to Taxes because of its failure to deliver a form
required hereunder, the Guarantor shall take such commercially reasonable steps as the LC Issuer
48
shall reasonably request to assist the LC Issuer to recover such Taxes from the applicable
governmental authority.
(g)The LC Issuer shall, at the request of the Guarantor, use reasonable efforts
(consistent with applicable legal and regulatory restrictions) to file any certificate or document
requested by the Guarantor if the making of such a filing would avoid the need for or reduce the
amount of any such additional amounts payable to or for the account of the LC Issuer pursuant to
this Section 7.02 which may thereafter accrue and would not, in the sole judgment of the LC
Issuer, require the LC Issuer to disclose any confidential or proprietary information or be
otherwise disadvantageous to the LC Issuer. Furthermore, if the LC Issuer determines, it its sole
discretion exercised in good faith, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified pursuant to this Section 7.02 (including the payment of additional
amounts pursuant to this Section 7.02), it shall pay to the indemnifying party an amount equal to
such refund, net of all out-of-pocket expenses of such Indemnitee and without interest (other than
interest paid by the relevant governmental authority). Such indemnifying party, upon the request
of such Indemnitee, shall repay to such Indemnitee the amount paid over pursuant to this
paragraph (g) (plus any penalties, interest or other charges imposed by the relevant governmental
authority) in the event that such Indemnitee is required to repay such refund to such
governmental authority.
(h)Notwithstanding the foregoing, nothing in this Section 7.02 shall interfere
with the rights of the LC Issuer to conduct its fiscal or tax affairs in such manner as it deems fit.
SECTION 7.03 Mitigation Obligations. If the LC Issuer requests compensation under
Section 7.01, or if the Guarantor is required to pay any additional amount to the LC Issuer or any
governmental body, agency or official for the account of the LC Issuer pursuant to Section 7.02,
then the LC Issuer shall use reasonable efforts to designate a different Applicable Lending Office
for funding or booking its LC Exposure hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment of the LC Issuer
(with the concurrence of the Guarantor), such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 7.01 or 7.02, as the case may be, in the future and
(ii) would not subject the LC Issuer to any unreimbursed cost or expense and would not
otherwise be disadvantageous to the LC Issuer. The Guarantor hereby agrees to pay all
reasonable costs and expenses incurred by the LC Issuer in connection with any such designation
or assignment.
SECTION 7.04 Survival. The provisions of this Article shall survive the Termination
Date and the repayment, satisfaction or discharge of all the other Obligations.
ARTICLE VIII MISCELLANEOUS
SECTION 8.01 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 any
Obligor, at the Guarantor’s address set forth on the Guarantor’s signature page hereof, (b) in the
case of the LC Issuer, at its address or telecopier number set forth on its respective signature page
49
hereof or such other address or telephone number designated by LC Issuer in a written notice to
Obligors, or (c) in the case of any other party, such other address or telecopier number as such
party may hereafter specify for the purpose by notice to the LC Issuer and the Guarantor. 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 given by telecopier, when transmitted to the
telecopier number specified in this Section 8.01 or (iii) if given by any other means, when
delivered at the relevant address specified by such party pursuant to this Section 8.01; provided
that notices to the LC Issuer under Article II or Article VIII shall not be effective until received.
The LC Issuer or the Guarantor 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.
SECTION 8.02 No Waivers. No failure or delay by the LC Issuer 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 8.03 Expenses; Indemnification; Non-Liability of the LC Issuer.
(a)The Guarantor shall pay (i) all reasonable and documented out-of-pocket
costs and expenses of the LC Issuer and its Affiliates, including reasonable and documented fees
and disbursements of one primary counsel and, if reasonably necessary, a single local counsel
firm in each relevant material jurisdiction and a single regulatory counsel firm, for the LC Issuer,
in connection with the preparation, due diligence, administration, closing and enforcement of this
Agreement and the other Credit Documents, any waiver or consent hereunder or any amendment
hereof or any Default or alleged Default hereunder (it being understood and agreed that the
aggregate fees and disbursement of counsel to the LC Issuer and its Affiliates prior to the
Effective Date shall not exceed $30,000) and (ii) if an Event of Default occurs, all out-of-pocket
expenses incurred by the LC Issuer, including fees and disbursements of one firm of primary
counsel and, if reasonably necessary, a single local counsel in each relevant material jurisdiction
and a single regulatory counsel, in connection with such Event of Default and collection,
bankruptcy, insolvency and other enforcement proceedings resulting therefrom.
(b)Each Obligor agrees to indemnify the LC Issuer, its Affiliates and its
directors, officers, agents, advisors and employees of the foregoing (each an “Indemnitee”) and
hold each Indemnitee harmless from and against any and all liabilities, losses, damages,
reasonable and documented out-of-pocket costs and expenses of any kind, including, without
limitation, costs of settlement and the reasonable and documented out-of-pocket fees and
disbursements of one counsel for the Indemnitees, 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 an Obligor, its equity
50
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) the Letter of Credit (or any drawing honored thereunder) or the use of proceeds therefrom
(including any refusal by the LC Issuer to honor a demand for payment under the Letter of Credit
if the documents presented in connection with such demand do not comply with the terms of the
Letter of Credit); 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 losses, claims, damages,
liabilities or related expenses have resulted from (x) the gross negligence or willful misconduct
of such Indemnitee or its Related Parties, (y) the material breach in bad faith by such Indemnitee
of its material obligations hereunder or (z) any claim, litigation, or proceeding solely among
Indemnitees brought by any Indemnitee against another Indemnitee that does not involve an act
or omission (or alleged act or omission) by the Guarantor or any of its Subsidiaries, 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. Paragraph (b) of this Section shall not apply with respect to
Taxes other than any Taxes that represent losses, claims, damages, liabilities or related expenses
arising from any nonTax claim.
(c)To the fullest extent permitted by applicable law, each Obligor shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for
special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the transactions contemplated hereby, the Letter of Credit or the
use of the proceeds thereof. None of the Guarantor or its Related Parties shall have any liability
under this Section 8.03 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 Guarantor’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)The agreements in this Section 8.03 shall survive the Termination Date and
the repayment, satisfaction or discharge of all the Secured Obligations.
SECTION 8.04 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
Obligors and the LC Issuer.
SECTION 8.05 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
no Obligor may assign or otherwise transfer any of its rights or obligations under this
Agreement, without the prior written consent of the LC Issuer.
51
(b)The LC Issuer may at any time grant to one or more banks or other
institutions (other than to any Disqualified Institution) (each a “Participant”) participating
interests in the Letter of Credit. In the event of any such grant by the LC Issuer of a participating
interest to a Participant, whether or not upon notice to the Guarantor, the LC Issuer shall remain
solely responsible for the performance of its obligations hereunder, and the Guarantor shall
continue to deal solely and directly with the LC Issuer in connection with the LC Issuer’s rights
and obligations under this Agreement. Any agreement pursuant to which the LC Issuer may grant
such a participating interest shall provide that the LC Issuer shall retain the sole right and
responsibility to enforce the obligations of the Guarantor hereunder including, without limitation,
the right to approve any amendment, modification or waiver of any provision of this Agreement;
provided that such participation agreement may provide that the LC Issuer will not agree to any
modification, amendment or waiver of this Agreement described in the proviso of Section
8.05(a) without the consent of the Participant. The Guarantor agrees that each Participant shall,
to the extent provided in its participation agreement, be entitled to the benefits of Article VIII
with respect to its participating interest. An assignment or other transfer which is not permitted
by subsection (c) or (d) of this Section shall be given effect for purposes of this Agreement only
to the extent of a participating interest granted in accordance with this subsection (b). The LC
Issuer that grants a participation shall, acting solely for this purpose as a non-fiduciary agent of
the Guarantor, 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 Letter of
Credit or other obligations under this Agreement (the “Participant Register”); provided that the
LC Issuer shall not 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 the Letter of Credit or any other obligations under any Credit Document)
except to the extent that such disclosure is necessary to establish that the Letter of Credit or such
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
the LC Issuer 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.
(c)The LC Issuer may at any time assign to one or more NAIC Approved
Banks all (but not a portion of) of its rights and obligations under this Agreement with (and
subject to) the consent (which in each case shall be exercised in its sole discretion) of each
Obligor.
(d)The LC Issuer may at any time assign all or any portion of its rights under
this Agreement to any Person to secure obligations of the LC Issuer, including, without
limitation, 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 LC Issuer from its
obligations hereunder.
(e)No Participant shall be entitled to receive any greater payment under
Section 7.01 or 7.02 than the LC Issuer would have been entitled to receive with respect to the
rights transferred, unless such transfer is made (i) with the Guarantor’s prior written consent, (ii)
52
by reason of the provisions of Section 7.03 requiring such Participant to designate a different
Applicable Lending Office under certain circumstances or (iii) at a time when the circumstances
giving rise to such greater payment did not exist.
SECTION 8.06 New York Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 8.07 Judicial Proceedings.
(a)Submission to Jurisdiction. Each Obligor hereby submits to the exclusive
jurisdiction of the United States District Court for the Southern District of New York and of any
New York State court sitting in New York City, borough of Manhattan, for purposes of all legal
proceedings (whether in tort, law or equity) arising out of or relating to this Agreement or any
other Credit Document or the transactions contemplated hereby. Each Obligor 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)Appointment of Agent for Service of Process. Each Subsidiary Account
Party irrevocably designates and appoints the Guarantor, and the Guarantor hereby accepts such
appointment, at its office in New York, New York set forth beneath the Guarantor’s signature on
the signature page hereof, as the authorized agent of such Subsidiary Account Party, to accept
and acknowledge on its behalf, service of any and all process which may be served in any suit,
action or proceeding of the nature referred to in subsection (a) of this Section 8.07 in any federal
or New York State court sitting in New York City. Said designation and appointment shall be
irrevocable by each Subsidiary Account Party until all reimbursement obligations, interest
thereon and all other amounts payable hereunder shall have been paid in full in cash in
accordance with the provisions hereof and thereof.
(c)Service of Process. Each Obligor hereby consents to process being served
in any suit, action or proceeding of the nature referred to in subsection (a) of this Section 8.07 in
any federal or New York State court sitting in New York City by service of process upon its
agent appointed as provided in subsection (b) of this Section 8.07; provided that, to the extent
lawful and possible, notice of said service upon such agent shall be mailed by registered or
certified air mail, postage prepaid, return receipt requested, to such Obligor at its address
specified on the signature page hereof (or, in the case of any Subsidiary Account Party, on the
signature page of the Subsidiary Joinder Agreement to which it is a party) or to any other address
of which such Obligor shall have given written notice to the LC Issuer. Each Obligor irrevocably
waives, to the fullest extent permitted by law, all claim of error by reason of any such service in
such manner and agrees that such service shall be deemed in every respect effective service of
process upon such Obligor in any such suit, action or proceeding and shall, to the fullest extent
permitted by law, be taken and held to be valid and personal service upon and personal delivery
to such Obligor.
(d)No Limitation on Service or Suit. Nothing in this Section 8.07 shall affect
53
the right of the LC Issuer to serve process in any other manner permitted by law or limit the right
of the LC Issuer to bring proceedings against the Guarantor in the courts of any jurisdiction or
jurisdictions.
SECTION 8.08 Counterparts; Integration; Headings. This Agreement 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 constitutes 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.
SECTION 8.09 Confidentiality. (a) The LC Issuer agrees that it 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 under this Agreement by or on behalf of the Guarantor (hereinafter collectively called
“Confidential Information”), subject to the LC Issuer’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 its subsidiaries and Affiliates and the subsidiaries and Affiliates of its holding
company, provided that the LC Issuer 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
Guarantor or any of its Subsidiaries and Affiliates, (d) right to provide such information to
participants, prospective participants, prospective assignees or assignees pursuant to Section 8.05
(with the consent of the Guarantor (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 8.09 as if it were the LC Issuer, (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
Guarantor, right to disclose any such Confidential Information on a confidential basis to any
rating agency in connection with rating the Guarantor or its Subsidiaries or this facility and (g)
right to provide such information with the Guarantor’s prior written consent. Notwithstanding the
foregoing, any such information supplied to the LC Issuer, 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.
(b) For the avoidance of doubt, nothing in this Section 8.09 shall prohibit any Person
from voluntarily disclosing or providing any Confidential Information within the scope of this
confidentiality provision to any governmental, regulatory or self-regulatory organization (any
54
such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set
forth in this Section 8.09 shall be prohibited by the laws or regulations applicable to such
Regulatory Authority.
SECTION 8.10 WAIVER OF JURY TRIAL. EACH OBLIGOR AND THE LC
ISSUER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.11 Joinder of Subsidiary Account Party.
(a)Any direct or indirect wholly-owned Subsidiary of the Guarantor that is
organized under the laws of the United States and that is organized, licensed or regulated under
applicable law as an insurance or reinsurance company may, to the extent contemplated by
Sections 5.03 and 5.09, and upon the request of the Guarantor at any time, upon not less than
three Business Days’ notice to the LC Issuer, become a party to this Agreement as a Subsidiary
Account Party, provided that such Subsidiary shall have delivered an executed Subsidiary
Joinder Agreement, substantially in the form of Exhibit C hereto, to the LC Issuer for acceptance
by it, and provided further that on and as of the date of acceptance of such Subsidiary Joinder
Agreement by the LC Issuer (i) no Default or Event of Default shall have occurred and be
continuing, (ii) the LC Issuer shall have received all documents and instruments as they may
reasonably request related to such Subsidiary, including legal opinions and information required
to comply with “know your customer” or similar identification requirements of the LC Issuer, in
each case, to the reasonable satisfaction of the LC Issuer and (iii) such Subsidiary Account Party
shall be deemed to have appointed the Guarantor as its authorized agent pursuant to Section
8.07(b) to accept service of any and all process which may be served in any suit, action or
proceeding of any nature in any federal or New York State court sitting in New York City arising
out of or relating to this Agreement or any other Credit Document or the transactions
contemplated hereby.
(b)[Reserved].
SECTION 8.12 USA PATRIOT Act. The LC Issuer hereby notifies each Obligor that
pursuant to the requirements of the Patriot Act, the LC Issuer may be required to obtain, verify
and record information that identifies each Obligor, which information includes the name and
address of each Obligor and other information that will allow the LC Issuer to identify each
Obligor in accordance with said Act. The Obligors hereby agree to provide any such information
promptly upon the request of the LC Issuer.
SECTION 8.13 No Fiduciary Duty. The LC Issuer and its Affiliates (collectively, solely
for purposes of this Section 8.13, the “LC Issuer”), may have economic interests that conflict
with those of the Obligors, their respective stockholders and/or their affiliates. The Guarantor
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 the LC Issuer, on the
one hand, and the Guarantor, its stockholders or its affiliates, on the other. The Guarantor
acknowledges and agrees that (i) the transactions contemplated by the Credit Documents
55
(including the exercise of rights and remedies hereunder and thereunder) are arm’s-length
commercial transactions between the LC Issuer, on the one hand, and the Guarantor, on the other,
and (ii) in connection therewith and with the process leading thereto, (x) the LC Issuer has not
assumed an advisory or fiduciary responsibility in favor of the Guarantor, 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 the LC
Issuer has advised, is currently advising or will advise the Guarantor, its stockholders or its
Affiliates on other matters) or any other obligation to the Guarantor except the obligations
expressly set forth in the Credit Documents and (y) the LC Issuer is acting solely as principal and
not as the agent or fiduciary of the Guarantor, its management, stockholders or creditors or any
other Person. The Guarantor acknowledges and agrees that the Guarantor 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 Guarantor agrees that it will not claim that the LC Issuer has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the Guarantor, in
connection with such transaction or the process leading thereto.
SECTION 8.14 Right of Setoff. If an Event of Default shall have occurred and be
continuing, the LC Issuer 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 the LC Issuer or any such Affiliate to or for the credit or the account of any
Obligor against any of and all the obligations of any Obligor at the time existing under this
Agreement held by the LC Issuer or its Affiliates, irrespective of whether or not the LC Issuer or
its Affiliates shall have made any demand under this Agreement and although such obligations
may be contingent or unmatured or are owed to a branch office or Affiliate of the LC Issuer
different from the branch office or Affiliate holding such deposit or obligated on such
indebtedness. The rights of the LC Issuer under this Section 8.14 are in addition to other rights
and remedies (including any other rights of setoff) which the LC Issuer may have. The LC Issuer
agrees to notify the Guarantor 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.
SECTION 8.15 Entire Agreement. This Agreement and the other Credit Documents
represent the final agreement among the parties and may not be contradicted by evidence of
prior, contemporaneous, or subsequent oral agreements of the parties hereto. There are no
unwritten oral agreements among the parties hereto.
SECTION 8.16 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, to the extent that such Credit Document is subject to the Bail-In Legislation
under applicable law, any liability of any Affected Financial Institution arising under any Credit
Document, to the extent such liability is unsecured, may be subject to the write-down and
conversion powers of the applicable Resolution Authority and, to the extent that any such Credit
56
Document is subject, under applicable law, to the Bail-In Legislation, agrees and consents to, and
acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the
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;
(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 undertaking, 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 the applicable Resolution Authority.
[Signature Pages Follow]
[EQH – Signature Page to Reimbursement Agreement]
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.
GUARANTOR:
EQUITABLE HOLDINGS, INC.
By:
Name: Peter Tian
Title: Treasurer
U.S. Federal Tax Identification No.: 90-0226248
Attention:
Peter Tian, Treasurer
Equitable Holdings, Inc.
1345 Avenue of the Americas
New York, New York 10105
Tel: 212-314-5030
[EQH – Signature Page to Reimbursement Agreement]
SUBSIDIARY ACCOUNT PARTY:
EQ AZ LIFE RE COMPANY
By:
Name: Peter Tian
Title: Treasurer
[EQH – Signature Page to Reimbursement Agreement]
LC ISSUER:
MUFG BANK, LTD.,
as LC Issuer
By:
Name:
Title:
Address for Notices (all notices for the LC Issuer):
MUFG Bank, Ltd.
1221 Avenue of the Americas
New York, NY 10020
Attention: Jared Fong, Vice President, Global
Financial Solutions
Telephone: (646) 767-1427
Fax: (212) 782-6448
Email: jfong@us.mufg.jp
Applicable Lending Office (Administrative
Matters and LC Draws):
MUFG Bank, Ltd.
210 Hudson Street, Suite 500
Jersey City, NJ 07311
Attention: Antonina Bondi
Telephone: (201) 413-8823
[EQH – Signature Page to Reimbursement Agreement]
Fax: (201) 521-2336
Email: abondi@us.mufg.jp
SCHEDULE I
MATERIAL SUBSIDIARIES AND SUBSIDIARY ACCOUNT PARTIES
Material Subsidiaries
1.Equitable Financial Services, LLC
2.Equitable Financial Life Insurance Company
3.Equitable Financial Life Insurance Company of America
Subsidiary Account Parties
1.EQ AZ Life RE Company
SCHEDULE II
HYBRID INSTRUMENTS
None.
SCHEDULE III
DEBT
None.
EXHIBIT A
FORM OF LETTER OF CREDIT
FOR INTERNAL IDENTIFICATION
PURPOSES ONLY
Our N° [ ]
Applicant: EQ AZ Life Re Company
1345 Avenue of the Americas New
York, New York 10105
Issue Date: January 23, 2024
Irrevocable Standby Letter of Credit N° [ ] Beneficiary:
Equitable Financial Life Insurance Company
1345 Avenue of the Americas, New York, New York 10105
Attention: Yun Zhang – Treasurer
To: Equitable Financial Life Insurance Company Ladies
and Gentlemen:
We, MUFG Bank, Ltd., acting as LC Issuer (the “Issuing Bank”), hereby establish this
irrevocable, unconditional Standby Letter of Credit (this “Letter of Credit”) in favor of the
aforesaid addressee (“Beneficiary”) for drawings up to United States Dollars Two Hundred
Million and 00/100 (US$ 200,000,000.00) effective immediately. This Letter of Credit is issued
by MUFG Bank, Ltd., acting through its New York Branch and is presentable and payable at
1251 Avenue of the Americas, New York, NY 10020, Attn: Trade Service Operations / SBLC
Section for the amounts specified in any sight draft drawn hereunder, which amounts shall not,
when aggregated with all other amounts paid by the Issuing Bank to the Beneficiary under this
Letter of Credit, exceed the amount specified above, and expires with our close of business on
January 23, 2029 (the “Expiration Date”). In no way are the obligations of the Issuing Bank
under this Letter of Credit contingent upon reimbursement with respect thereto or upon the
Issuing Bank’s ability to perfect any lien, security interest or any other reimbursement.
The term “Beneficiary” includes any successor by operation of law of the named Beneficiary including,
without limitation, any liquidator, rehabilitator, receiver or conservator.
We hereby undertake to promptly honor your sight draft(s) drawn on the Issuing Bank, indicating
its Letter of Credit number [ ], for all or any part of this Letter of Credit upon presentation to the
Issuing Bank at 1251 Avenue of the Americas, New York, NY 10020, Attn: Trade Service
Operations / SBLC Section on or before the expiration date or any automatically extended
expiration date. The Issuing Bank makes this undertaking for an amount not to exceed the
aggregate amount available under this Letter of Credit. Payment by the Issuing Bank with
respect of amount owed by the Issuing Bank hereunder shall be transferred by the Issuing Bank
to the Beneficiary’s account specified in the sight draft in form attached hereto as Appendix 1.
Except as expressly stated herein, this undertaking is not subject to any agreement, condition or
qualification.
It is a condition of this Letter of Credit that the Expiration Date shall be deemed to be
automatically extended, without amendment, for one year from the Expiration Date hereof, or
any future Expiration Date, unless at least sixty (60) calendar days prior to any such Expiration
Date (or such shorter or longer period of time as may be agreed between Equitable Holdings, Inc.
and the LC Issuer, but in no event shorter than 30 calendar days), we notify you by registered
mail or by overnight courier, addressed to MUFG Bank, Ltd., New York Branch, 1251 Avenue
of the Americas, New York, NY 10020 Attn: Trade Service Operations/SBLC Section, that we
elect not to consider this Letter of Credit extended for any such additional period.
This Letter of Credit is subject to and governed by the Laws of the State of New York and the
2007 Revision of the Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce (Publication N° 600) and, in the event of any conflict, the
Laws of the State of New York will control. If this Letter of Credit expires during any
interruption of business as described in Article 36 of said Publication No. 600, the Issuing Bank
hereby specifically agrees to effect payment if this Letter of Credit is drawn against, in
accordance with the terms and conditions of such Letter of Credit, within thirty (30) calendar
days after resumption of our business.
Very truly yours
MUFG Bank, Ltd.
New York Branch
By________________________________________
Name_____________________________________
Title______________________________________ APPENDIX 1 Form of Demand (U.S. dollars)
[on Beneficiary’s letterhead]
TO:
MUFG Bank, Ltd.,
New York Branch
1251 Avenue of the Americas
New York, NY 10020
Dear Sir/Madam
IRREVOCABLE STANDBY LETTER OF CREDIT NO. ________________
With reference to the above, we hereby claim payment of [●] U.S. dollars (USD [●]) for account
of [insert Applicant’s name] for the amount of which should be paid to the following account: [●]
[Beneficiary]
Authorized signature
Name:
Title:
EXHIBIT B
[Form of Letter of Credit Request]
See attached.
MUFG Bank, Ltd.
New York Branch
APPLICATION FOR STANDBY LETTER OF CREDIT

FOR BANK USE ONLY IRREVOCABLE CREDIT NO.
MGR | LAD | A/O

Office:MUFG Bank, Ltd., New York Branch
Attn:TSO/ Standby LC Section
Date:
Gentlemen,
Please issue an irrevocable Standby Letter of Credit as set forth below and forward same to your correspondent/beneficiary for delivery
to the beneficiary by [ ] Airmail [ ] Full cable

ADVISING BANK (If Correspondent Bank) N/A | AMOUNT United States Dollars Two Hundred Million and 00/100 (USD $ 200,000,000.00)
FOR ACCOUNT OF (Applicant Name/Address) EQ AZ Life Re Company 1345 Avenue of the Americas New York, New York 10105 | IN FAVOR OF (Beneficiary of SB LC)(Full Name/Address) Equitable Financial Life Insurance Company 1345 Avenue of the Americas New York, New York 10105
Drafts must be presented to drawee on or before (Expiration Date): 5-year LC maturity (i.e., 1/21/29) with 1 year evergreen renewals triggered on annual anniversary.

Available by draft(s) at sight drawn at your option on you or any of your correspondents accompanied by the following documents:
(T EXT OF SBLC W ORDING/F ORMAT/T ERMS AND CONDITIONS MUST BE STATED OR ATTACHED HERE WITH)

SPECIAL INSTRUCTIONS: D ELIVER TO: All Banking Charges outside of U.S.A. are for ( )Beneficiary’s Account | ( ) Applicant’s Account

S IGNATURE V ERIFICATION
___________________________
By:
1
MUFG Bank, Ltd.
New York Branch
THIS LETTER OF CREDIT WILL BE SUBJECT TO [ X ] UCP (2007 REVISION, ICC PUBLICATION NO. 600)
[ ] ISP98 (ICC PUBLICATION NO. 590 INTERNATIONAL STANDBY PRACTICES) (PLEASE
SELECT APPLICABLE RULE)
This Application is made subject to the Reimbursement Agreement heretofore executed by us and delivered to you, the provisions of
which are hereby made applicable to this Application and the Letter of Credit.

FOR BANK USE ONLY INTERNAL BOOK ONLY Y/N______(If “Y” indicate reserved LC Number) Customer Code_______________________ C/A.#Cost Center __________ ________________ Part Bought Code _________________ PBLC.#Cert # and Date_________________ _________________ FOR P/S DETAILS ATTACH FORM SBLC3 Affil Y/N ____ Synd Y/N __ Agent Bank Agent Bank ID _________ Y/N__________ FOR STANDBY COMM ATTACH FORM SBLC2 Evergreen Y/N____ No. of Days________ G/L Category ___________ Facility Code________ Guaranteed Y/N Funds Avail Purpose________________ _______________ _Y/N__________ _____ Appr. # ____________ Grade Review Class__________________ Date____________ Date_____________ SPECIAL INSTRUCTIONS Similar L/C (if any): (A duly approved copy of similar LC wording must be attached if applicable)

2
EXHIBIT C
Form of Subsidiary Joinder Agreement
[ ], 20[ ]
To MUFG Bank, Ltd.
1251 Avenue of the Americas, 7 th Floor New
York, NY 10020
Re: Subsidiary Joinder Agreement Ladies
and Gentlemen:
Reference is made to the Reimbursement Agreement (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the “Reimbursement
Agreement”) dated as of January 23, 2024 among Equitable Holdings, Inc. (the “Guarantor”), the
Subsidiary Account Parties party thereto from time to time and MUFG Bank, Ltd., as LC Issuer.
Capitalized terms used but not defined herein shall have the respective meanings assigned to
such terms in the Reimbursement Agreement.
The Guarantor and the “Subject Subsidiary” (as identified on the signature pages
below), have executed and hereby deliver this Subsidiary Joinder Agreement, pursuant to Section
8.11(a) of the Reimbursement Agreement, in order to designate the Subject Subsidiary as a
Subsidiary Account Party to the Reimbursement Agreement.
Accordingly, the Guarantor and the Subject Subsidiary hereby represent and
warrant and agree that as of the “Joinder Effective Date” (as defined below):
1.the Subject Subsidiary is [deemed to be a wholly-owned Subsidiary of
the Guarantor pursuant to the last sentence of Section 8.11(a)][a direct or indirect wholly-
owned Subsidiary of the Guarantor];
2.the Subject Subsidiary is subject to and bound by each of the obligations
of
a Subsidiary Account Party contained in the Reimbursement Agreement as if the Subject Subsidiary
were an original signatory to such Reimbursement Agreement;
3.no Default or Event of Default has occurred and is continuing under
the Reimbursement Agreement;
4.the guarantee of the Guarantor contained in Guarantee Agreement
applies
to all of the obligations of the Subject Subsidiary pursuant thereto; and
5.the Subject Subsidiary’s addresses for notices, other
communications and
service of process provided for in the Reimbursement Agreement shall be given in the manner,
and with the effect, specified in Sections 8.01 and 8.07(c) of the Reimbursement Agreement to it
at its “Address for Notices” specified on the signature pages below.
This Subsidiary Joinder Agreement shall become effective as of the date (the
“Joinder Effective Date”) on which the LC Issuer confirms its acceptance of this Subsidiary
Joinder Agreement as provided on the signature pages below in accordance with the terms of the
Reimbursement Agreement. As of the Joinder Effective Date, the Subject Subsidiary shall be
entitled to the rights, and subject to the obligations, of a Subsidiary Account Party contained in
the Reimbursement Agreement. Except as expressly herein agreed with respect to the joinder of
the Subject Subsidiary as a Subsidiary Account Party, the Reimbursement Agreement shall
remain unchanged and in full force and effect.
This Subsidiary Joinder Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same agreement. This
Subsidiary Joinder Agreement shall be governed by, and construed in accordance with, the law
of the State of New York.
GUARANTOR EQUITABLE
HOLDINGS, INC.
By:
Name:
Title:
SUBJECT SUBSIDIARY
[_______________________] a
[___________________][corporation]
By:
Name:
Title:
Address for Notices
[______________________]
[______________________]
[______________________]
Attn:____________________
Tel: [___________________]
Fax:
[___________________]
Agreed and Accepted:
this [____] [th] day of [____], 20[_]
MUFG BANK, LTD., as
LC Issuer
By:
Name:
Title: