Exhibit 10.8
Execution Version
CONFIDENTIAL
FIFTH AMENDMENT TO REIMBURSEMENT AGREEMENT
FIFTH AMENDMENT, dated as of May 12, 2023 (this “Fifth Amendment”), to the Reimbursement Agreement, dated as of February 16, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Reimbursement Agreement”), by and among Equitable Holdings, Inc. (f/k/a AXA Equitable Holdings, Inc.), a Delaware corporation (the “Guarantor”), the Subsidiary Account Parties party thereto and LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, acting through its New York Branch, as LC Issuer (the “LC Issuer”).
WHEREAS, the Obligors have requested that the LC Issuer agrees to the amendment to the Reimbursement Agreement provided for herein.
NOW, THEREFORE, in consideration of the material agreements, provisions and covenants contained herein, the parties agree as follows:
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[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to be duly executed and delivered by their respective authorized officers as of the day and year first above written.
GUARANTOR: | |
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EQUITABLE HOLDINGS, INC. | |
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By: | /s/ Yun Zhang |
Name: | Yun Zhang |
Title: | Treasurer |
[EQH – Helaba – Signature Page to Fifth Amendment to Reimbursement Agreement]
SUBSIDIARY ACCOUNT PARTY: | |
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EQ AZ LIFE RE COMPANY | |
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By: | /s/ Yun Zhang |
Name: | Yun Zhang |
Title: | Senior Vice President, |
| Chief Financial Officer and Treasurer |
[EQH – Helaba – Signature Page to Fifth Amendment to Reimbursement Agreement]
LC ISSUER: | |
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LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, | |
Acting through its New York Branch, as LC Issuer | |
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By: | /s/ Jesse A. Reid, Jr. |
Name: | Jesse A. Reid, Jr. |
Title: | Senior Vice President |
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By: | /s/ Stephanie Shinkarev |
Name: | Stephanie Shinkarev |
Title: | Assistant Vice President |
[EQH – Helaba – Signature Page to Fifth Amendment to Reimbursement Agreement]
Execution Version
Exhibit A
REIMBURSEMENT AGREEMENT
dated as of
February 16, 2018
among
EQUITABLE HOLDINGS, INC.
as the Guarantor
the SUBSIDIARY ACCOUNT PARTIES
party hereto
and
LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE,
Acting through its New York Branch,
as LC Issuer
$300,000,000
ARTICLE I DEFINITIONS | 1 | ||
| SECTION 1.01 | Definitions | 1 |
| SECTION 1.02 | Accounting Terms and Determinations | 19 |
ARTICLE II THE CREDITS | 20 | ||
| SECTION 2.01 | Letters of Credit | 20 |
| SECTION 2.02 | Reimbursement for LC Disbursements, Cover, Etc. | 22 |
| SECTION 2.03 | Benchmark Replacement. | 25 |
| SECTION 2.04 | Fees | 27 |
| SECTION 2.05 | Termination, Reduction Commitment | 27 |
| SECTION 2.06 | Payments Generally | 28 |
| SECTION 2.07 | Computation of Interest and Fees | 28 |
| SECTION 2.08 | Provisions Relating to NAIC Approved Banks | 28 |
ARTICLE III CONDITIONS | 28 | ||
| SECTION 3.01 | Each Credit Extension | 28 |
| SECTION 3.02 | Effectiveness | 29 |
ARTICLE IV REPRESENTATIONS AND WARRANTIES | 30 | ||
| SECTION 4.01 | Corporate Existence and Power | 31 |
| SECTION 4.02 | Corporate and Governmental Authorization; Contravention | 31 |
| SECTION 4.03 | Binding Effect | 31 |
| SECTION 4.04 | Financial Information; No Material Adverse Change | 31 |
| SECTION 4.05 | Litigation | 32 |
| SECTION 4.06 | Compliance with ERISA | 32 |
| SECTION 4.07 | Taxes | 32 |
| SECTION 4.08 | Subsidiaries | 33 |
| SECTION 4.09 | Not an Investment Company | 33 |
| SECTION 4.10 | Obligations to be Pari Passu | 33 |
| SECTION 4.11 | No Default | 33 |
| SECTION 4.12 | Material Subsidiaries and Subsidiary Account Parties | 33 |
| SECTION 4.13 | Full Disclosure | 33 |
| SECTION 4.14 | Hybrid Instruments | 34 |
| SECTION 4.15 | Margin Regulations | 34 |
| SECTION 4.16 | Sanctioned Persons; Anti-Corruption Laws; Patriot Act | 34 |
| SECTION 4.17 | EEA Financial Institutions | 34 |
ARTICLE V COVENANTS | 34 | ||
| SECTION 5.01 | Information | 35 |
| SECTION 5.02 | Payment of Obligations | 37 |
| SECTION 5.03 | Conduct of Business and Maintenance of Existence | 37 |
| SECTION 5.04 | Maintenance of Property; Insurance | 38 |
| SECTION 5.05 | Compliance with Laws | 38 |
| SECTION 5.06 | Inspection of Property, Books and Records | 38 |
| SECTION 5.07 | Financial Covenants | 39 |
| SECTION 5.08 | Negative Pledge | 39 |
| SECTION 5.09 | Consolidations, Mergers, Divisions, and Sales of Assets | 39 |
| SECTION 5.10 | Use of Credit | 39 |
| SECTION 5.11 | Obligations to be Pari Passu | 39 |
| SECTION 5.12 | Certain Debt | 40 |
ARTICLE VI DEFAULTS | 40 | ||
| SECTION 6.01 | Events of Default | 40 |
ARTICLE VII CHANGE IN CIRCUMSTANCES | 42 | ||
| SECTION 7.01 | Increased Cost and Reduced Return | 42 |
| SECTION 7.02 | Taxes | 44 |
| SECTION 7.03 | Mitigation Obligations | 47 |
| SECTION 7.04 | Survival | 47 |
ARTICLE VIII MISCELLANEOUS | 47 | ||
| SECTION 8.01 | Notices | 47 |
| SECTION 8.02 | No Waivers | 48 |
| SECTION 8.03 | Expenses; Indemnification; Non-Liability of the LC Issuer | 48 |
| SECTION 8.04 | Amendments and Waivers | 49 |
| SECTION 8.05 | Successors and Assigns | 49 |
| SECTION 8.06 | New York Law | 50 |
| SECTION 8.07 | Judicial Proceedings | 50 |
| SECTION 8.08 | Counterparts; Integration; Headings | 51 |
| SECTION 8.09 | Confidentiality | 52 |
| SECTION 8.10 | WAIVER OF JURY TRIAL | 52 |
| SECTION 8.11 | Joinder and Termination of Subsidiary Account Party | 52 |
| SECTION 8.12 | USA PATRIOT Act | 53 |
| SECTION 8.13 | No Fiduciary Duty | 53 |
| SECTION 8.14 | Right of Setoff | 54 |
| SECTION 8.15 | Entire Agreement | 54 |
| SECTION 8.16 | Acknowledgement and Consent to Bail-In of Affected Financial Institutions | 54 |
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
Exhibit D Form of Subsidiary Termination Notice
REIMBURSEMENT AGREEMENT dated as of February 16, 2018 among: EQUITABLE HOLDINGS, INC., a Delaware corporation, the SUBSIDIARY ACCOUNT PARTIES party hereto and LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, acting through its New York Branch, as LC Issuer.
WHEREAS, the Guarantor wishes to facilitate reinsurance cessions for its Affiliates by enabling the Subsidiary Account Parties to provide Letters 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 Letters 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 Letters 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 Letters of Credit, the LC Issuer, the Guarantor and the Subsidiary Account Parties agree as follows:
ARTICLE I
DEFINITIONS
“AB Entities” means AllianceBernstein Corporation, AllianceBernstein Holding L. P., AllianceBernstein L. P. and any of their subsidiaries.
“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 VA 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.
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“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 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.
“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.
“Availability Effective Date” means the initial date the conditions set forth in Section 3.01(a) are satisfied (or waived).
“Available Commitment” means as of the date of determination an amount equal to the Commitment Amount less the LC Exposure.
“Available Tenor” means, as of any date of determination and with respect to the then-current 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.
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“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 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.
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“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 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).
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“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:
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.
“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.
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“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).
“Commitment” means the commitment of the LC Issuer to issue Letters of Credit under Section 2.01(a), as expressed as an amount representing the maximum aggregate amount of the LC Issuer’s LC Exposure hereunder in an amount not to exceed the Commitment Amount.
“Commitment Amount” means $300,000,000, as such amount may be reduced from time to time pursuant to this Agreement.
“Commitment Availability Period” means the period from and including the Availability Effective Date to but excluding the Commitment Termination Date.
“Commitment Fee” has the meaning set forth in Section 2.03(a).
“Commitment Termination Date” means the earliest to occur of (i) February 16, 2026 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(e), (ii) upon the occurrence of a Sell-Down Event, on the date thereof or (iii) the date on which the Commitment is terminated pursuant to Section 6.01 or is reduced to zero pursuant to Section 2.04.
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“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.
“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 Non-Operating 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 and (c) with respect to any Letter of Credit, collectively, any application therefor and any other agreements, instruments, guarantees or other documents (whether general in application or applicable only to such Letter of Credit) governing or providing for (i) the rights and obligations of the parties concerned or at risk with respect to such 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,
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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 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 Commitment 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,
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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 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 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.
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“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 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.
“Fifth Amendment Effective Date” means May 12, 2023.
“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%.
“Fourth Amendment Effective Date” means December 15, 2021.
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“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 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 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.
“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.
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“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.
“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 Issuer” means Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch, in its capacity as LC Issuer hereunder.
“LC Disbursement” means a payment made by the LC Issuer pursuant to a Letter of Credit.
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC Disbursements under Letters of Credit that have not yet been reimbursed by or on behalf of the relevant Subsidiary Account Party at such time.
“Letter of Credit” means each 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)
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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% 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.
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“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 any 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 and securities lending, (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 (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.
“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
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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 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.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“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.
“PTE” means a prohibited transaction exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
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“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.
“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 Business Days preceding the date of such setting, (2) if such Benchmark is Daily Simple SOFR, then four 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.
“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.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“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).
“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.
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“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 AXA Equitable 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 AXA Equitable 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 all outstanding Letters of Credit at such 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 Subsidiary Account Party in accordance with the terms of Section 8.11, until such time as such Subsidiary ceases to be a 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”.
“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
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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.
“Third Amendment Effective Date” means June 25, 2021.
“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.
“VA Adjustment Amount” means, at any date, an amount equal to the GMxB accounting asymmetry portion of the “Variable annuity product features” adjustments set forth under “Non-GAAP Operating Earnings” in the notes to the financial statements of the Guarantor and its Consolidated Subsidiaries for the fiscal quarter ended March 31, 2021 plus such amount for each subsequent fiscal quarter for which financial statements have been delivered to the LC Issuer in accordance with Section 5.01, on a cumulative basis and without duplication; provided that such adjustments shall be determined in a manner materially consistent with past practice as reflected in the calculation for the fiscal quarter ended March 31, 2021 that was provided to the LC Issuer prior to the Effective Date. The VA 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.
“Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial
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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.
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ARTICLE Ii
THE CREDITS
Each 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. Each 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 a 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 such 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 such 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, such Letter of Credit shall include such requested or revised provisions (such provisions, “NAIC-Compliant Provisions”) unless the issuance of such 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 Letters of Credit be transferable.
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Unless otherwise specified by the relevant Subsidiary Account Party, each Letter of Credit shall 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 (each such Letter of Credit, an “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 an 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 such Letter of Credit); provided, that each Letter of Credit shall by its terms expire no later than one year after the Commitment Termination Date with a properly executed Non-Extension Notice.
In no event may more than five issuances, amendments and/or extensions of Letters of Credit occur on any day, unless the LC Issuer shall otherwise agree.
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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 any 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 any 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 a 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:
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ARTICLE Iii
CONDITIONS
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Each issuance, amendment or extension of a 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.
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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, the Availability Effective Date and each other date as required by the Credit Documents, the Guarantor represents and warrants that:
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ARTICLE V
COVENANTS
Until the Commitment has expired or been terminated, all Letters of Credit shall have expired or terminated or been cash collateralized to the satisfaction of the LC Issuer and all LC Disbursements shall have been reimbursed the Guarantor agrees that:
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The Guarantor will deliver to each of the LC Issuer:
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Documents required to be delivered pursuant to Section 5.01 (a), (b), (d), (e) or (g) 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) or (g)
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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 publically 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).
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ARTICLE VI
DEFAULTS
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then, and in every such event, and at any time thereafter during the continuance of 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) terminate the Commitment and they shall thereupon terminate, (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 all Letters 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, the Commitment shall thereupon terminate and 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
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“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.
“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 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 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 the Credit Agreement pursuant to a law in effect on the date on which the LC Issuer acquires such interest in the Credit 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
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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 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”.
“Other Taxes” means any present or future stamp or documentary taxes and any other excise or property taxes, or similar charges or levies, which arise from any payment made pursuant to this Agreement or any other Credit Document or from the execution, delivery, registration or enforcement of, or otherwise with respect to, this Agreement or any other Credit Document, but excluding any such taxes described in clause (ii) of the definition of Excluded Taxes imposed with respect to an assignment.
“Withholding Agent” means the Guarantor.
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ARTICLE VIII
MISCELLANEOUS
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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.
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53
[Signature Pages Follow]
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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: | |
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| EQUITABLE HOLDINGS, INC. | |
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| By: |
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| Name: |
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| Title: |
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| U.S. Federal Tax Identification No.: 90-0226248 | |
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| Attention: Robin M. Raju, Senior Vice President and Treasurer Equitable Holdings, Inc. 1290 Avenue of the Americas New York, New York 10104 Tel: 212-314-4189 | |
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| With a copy to: Yun Zhang, Vice President and Assistant Treasurer Equitable Holdings, Inc. 1290 Avenue of the Americas New York, New York 10104 Tel: 212-314-5030 |
| LC ISSUER: | |
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| LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, | |
| Acting through its New York Branch, as LC Issuer | |
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| By: |
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| Name: |
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| Title: |
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[EQH – Signature Page to Reimbursement Agreement]
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| By: |
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| Name: |
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| Address for Notices (all notices for the LC Issuer): | ||
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| Landesbank Hessen‑Thüringen Girozentrale | ||
| Attention: | Institutional Clients | |
| Telephone: | (212) 703‑5200 | |
| Facsimile: | (212) 703‑5256 | |
| E-mail: | samuel.bridges@helabany.com | |
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| Stephanie.shinkarev@helabany.com | |
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| Applicable Lending Office (Administrative Matters and LC Draws): | ||
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| Landesbank Hessen‑Thüringen Girozentrale | ||
| Attention: | Ms. Rose Salas | |
| Telephone: | (212) 703‑5312 | |
| Facsimile: | (212) 703‑5256 | |
| E-mail: | Sousan.morad@helabany.com | |
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| loanadmin@helabany.com |
[EQH – Signature Page to Reimbursement Agreement]
SCHEDULE I
MATERIAL SUBSIDIARIES AND SUBSIDIARY ACCOUNT PARTIES
Material Subsidiaries
1. Equitable Financial Services, LLC
2. Equitable Life Insurance Company
Subsidiary Account Parties
SCHEDULE II
HYBRID INSTRUMENTS
None.
SCHEDULE III
DEBT
None.
EXHIBIT A
FORM OF LETTER OF CREDIT
| FOR INTERNAL IDENTIFICATION PURPOSES ONLY |
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| Our N° [ ] |
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| Applicant: [ ] |
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| Issue Date: [ ] |
Irrevocable Letter of Credit N° [ ]
Beneficiary:
[ ]
Attention:
[ ]
To: [●]
Dear Sirs
Ladies and Gentlemen:
We, Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch (the “Issuing Bank”), hereby establish this irrevocable, unconditional Letter of Credit in favor of the aforesaid addressee (“Beneficiary”) for drawings up to United States Dollars [●] US$ [●], effective immediately. This Letter of Credit is issued by Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch and is presentable and payable at 420 Fifth Avenue, New York, New York 10018 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 [●] (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 420 Fifth Avenue, New York, New York 10018 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) days prior to any such Expiration Date, we notify you by registered mail or by overnight courier, addressed to [ ], 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) days after resumption of our business.
Very truly yours
Landesbank Hessen-Thüringen Girozentrale,
Acting Through its New York Branch
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APPENDIX 1
Form of Demand (U.S. dollars)
[on Beneficiary’s letterhead]
Dear Sir/Madam
[Beneficiary]
LETTER OF CREDIT NO.
With reference to the above, we hereby claim payment of [●] U.S. dollars (USD [●]) the amount of which should be paid to the following account:
[●]
EXHIBIT B
[Form of Letter of Credit Request]
Landesbank Hessen-Thüringen Girozentrale,
acting through its New York Branch,
as LC Issuer under the Reimbursement Agreement referred to below
_________ __, ____
Attention:
Re: [●] (the "Subsidiary Account Party")
Reference is made to the Reimbursement Agreement, dated as of February 16, 2018 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Reimbursement Agreement"), among Equitable Holdings, Inc., the Subsidiary Account Parties party thereto and Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch. Capitalized terms used herein without definition are used as defined in the Reimbursement Agreement.
[The Subsidiary Account Party hereby gives you notice pursuant to Section 2.01(b) of the Reimbursement Agreement, of its request for your issuance of a Letter of Credit, in the form attached hereto, for the benefit of [Name and address of Beneficiary], in the amount of $________, to be issued on ________, ____ (the "Issue Date") with an expiration date of _________, ____. The requested terms and conditions of the Letter of Credit are contained in the form attached hereto.]
[The Subsidiary Account Party hereby gives you notice pursuant to Section 2.01(b) of the Reimbursement Agreement, of its request for your amendment of the Letter of Credit attached hereto, currently issued for the benefit of [Name and address of Beneficiary]. The Subsidiary Account Party requests that the amended Letter of Credit be in the form attached hereto, for the benefit of the Beneficiary, in the amount of $________, to be amended as of ________, ____ (the "Amendment Date") with an expiration date of _________, ____. The requested terms and conditions of the amended Letter of Credit are contained in the form attached hereto.]
[The Subsidiary Account Party hereby gives you notice pursuant to Section 2.01(b) of the Reimbursement Agreement, of its request for your extension of the expiration date of the Letter of Credit attached hereto, for the benefit of [Name and address of Beneficiary]. The Subsidiary Account Party requests that the extension take effect on ________, ____ (the "Extension Date") with a new expiration date of _________, ____. The terms and conditions of the Letter of Credit otherwise remain the same and are contained in the Letter of Credit attached hereto.]
We confirm that each condition specified in Section 3.01 of the Agreement is satisfied on the date of this Letter of Credit Request and that the Letter of Credit will be used only to support reinsurance of the Applicant and the Guarantor. We further confirm that none of the conditions specified in Section 2.01(f) of the Agreement have occurred and are continuing.
Delivery instructions and contact information: [to be delivered to the beneficiary.] [amend as appropriate]
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as the Subsidiary Account Party | ||
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EXHIBIT C
Form of Subsidiary Joinder Agreement
[ ], 20[ ]
To Landesbank Hessen-Thüringen Girozentrale
New York Branch
420 Fifth Avenue
New York, NY 10018‑2729
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 February 16, 2018 among Equitable Holdings, Inc. (the “Guarantor”), the Subsidiary Account Parties party thereto and Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch. 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.
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By: |
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Name: | |
Title: |
SUBJECT SUBSIDIARY
[_______________________]
a [___________________][corporation]
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By: |
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Name: | |
Title: |
Address for Notices
[______________________]
[______________________]
[______________________]
Attn:____________________
Tel: [___________________]
Fax: [___________________]
Agreed and Accepted:
this [____] [th] day of [____], 20[_]
LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE,
acting through its New York Branch,
as LC Issuer
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Name: | |
Title: |
EXHIBIT D
Form of Subsidiary Termination Notice
[Date]
To: Landesbank Hessen-Thüringen Girozentrale, New York Branch
From: Equitable Holdings, Inc. (the “Guarantor”)
Re: |
| Reimbursement Agreement (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Reimbursement Agreement") dated as of February 16, 2018 among the Guarantor, the Subsidiary Account Parties party thereto and Landesbank Hessen-Thüringen Girozentrale, acting through its New York Branch (the “LC Issuer”) |
The Guarantor hereby gives notice pursuant to Section 8.11(b) of the Reimbursement Agreement that, effective as of the date hereof and subject to the conditions set forth in Section 8.11(b) of the Reimbursement Agreement, [_________] is terminated as a Subsidiary Account Party under the Reimbursement Agreement and all commitments by the LC Issuer to issue Letters of Credit for account of such Subsidiary Account Party under the Reimbursement Agreement are hereby terminated.
Pursuant to Section 8.11(b) of the Reimbursement Agreement, the Guarantor hereby certifies that there is no LC Exposure outstanding with respect to any Letter of Credit outstanding with respect to which [_________] is the account party.
All obligations of [_________] arising in respect of any period in which [_________] was, or on account of any action or inaction taken by [_________] as, a Subsidiary Account Party under the Reimbursement Agreement shall survive the termination effected by this notice.
Terms used herein have the meanings assigned to them in the Reimbursement Agreement.
EQUITABLE HOLDINGS, INC. | |
By |
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| Authorized Officer |