UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 21, 2017
Brighthouse Financial, Inc.
(Exact name of registrant as specified in its charter)
(Exact name of registrant as specified in its charter)
Delaware | 001-37905 | 81-3846992 | ||
(State or other jurisdiction of incorporation) | (Commission File Number) | (IRS Employer Identification No.) | ||
Gragg Building, 11225 North Community House Road Charlotte, North Carolina | 28277 |
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code:
(980) 365-7100
Not Applicable
(Former name or former address, if changed since last report)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On July 21, 2017, Brighthouse Financial, Inc. (the “Company”) entered into a new term loan agreement (the “2017 Term Loan Agreement”) with respect to a new $600 million delayed draw term loan facility (the “2017 Term Loan Facility”), with Bank of America, N.A., as administrative agent, and the other lenders party thereto. The 2017 Term Loan Facility replaces the 2016 Term Loan Facility (as defined below). As of July 21, 2017, no borrowings were outstanding under either the 2017 Term Loan Facility or the 2016 Term Loan Facility.
The 2017 Term Loan Facility provides for maximum borrowings of up to $600 million which may be used for general corporate purposes, including in connection with the pending separation of the Company from MetLife, Inc. (the “separation”). Prior to the completion of the separation, which will take place as of 5 p.m. New York City time on August 4, 2017, the aggregate principal amount of borrowings under the Term Loan Agreement may not exceed $500 million. All borrowings under the 2017 Term Loan Facility must be repaid by the earlier to occur of (i) December 2, 2019 or (ii) if the separation has not occurred on or prior to August 15, 2017, August 15, 2017 (the “Termination Date”).
Amounts under the 2017 Term Loan Facility are available to the Company after the contribution by MetLife, Inc. of all of the limited liability company interests of Brighthouse Holdings, LLC (“Brighthouse Intermediate Company”) through August 15, 2017. Alternatively, prior to the completion of such contribution, the Company may draw down amounts from available commitments under the 2017 Term Loan Facility, provided that Brighthouse Intermediate Company provides a guaranty of such obligations.
Term loans under the 2017 Term Loan Facility will bear interest, at the Company’s option, at a variable rate equal to (i) the base rate (determined as the highest of (a) the Federal Funds Rate (as defined in the 2017 Term Loan Agreement) plus 0.50%, (b) the administrative agent’s prime rate and (c) the one month London interbank offered rate (“LIBOR”) plus 1.00%), plus an applicable margin ranging from 0.125% to 1.125% depending on the rating of the Company’s Index Debt (as defined in the 2017 Term Loan Agreement), or (ii) LIBOR plus an applicable margin ranging from 1.125% to 2.125% depending on the rating of the Company’s Index Debt. With respect to term loans accruing interest based on the base rate, interest payments are due quarterly in arrears on the last business day of each of March, June, September and December in each year and on the Termination Date. With respect to term loans accruing interest based on LIBOR, interest payments are due (i) on the last day of the applicable interest period, or, if such interest period is greater than three months, the last day of each three-month period, and (ii) in the event of any conversion of term loans accruing interest based on LIBOR prior to the end of the then-current interest period, on the effective date of such conversion. While any principal of or interest on any term loan accruing interest based on the base rate is overdue, the otherwise applicable interest rate will be raised 2.00% per annum on all such overdue amounts. While any principal on any term loan accruing interest based on LIBOR is overdue, such overdue principal will bear interest at a rate per annum equal to the sum of (i) 2.00% plus, (ii) an applicable margin ranging from 1.125% to 2.125% depending on the Index Debt rating, plus (iii) one-day or longer-term LIBOR depending on the period such principal remains unpaid. While any interest on any term loan accruing interest based on LIBOR is overdue, such overdue interest will bear interest at a rate per annum equal to the sum of (i) 2.00% plus, (ii) the base rate for such day, plus (iii) an applicable margin ranging from 1.125% to 2.125% based on the Index Debt rating. The 2017 Term Loan Agreement requires the Company to pay to the administrative agent, for the benefit of each lender, a commitment fee, which will accrue in an
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amount that ranges between 0.150% and 0.375% per annum, depending upon the Index Debt rating, for the daily undrawn commitment of each lender until such commitment is reduced to zero and terminated.
The 2017 Term Loan Facility is unsecured and ranks pari passu with the Company’s other material unsecured and unsubordinated indebtedness.
The 2017 Term Loan Agreement contains customary events of default, representations and warranties and covenants, including, among other things, covenants that restrict the ability of the Company and its subsidiaries to incur certain additional indebtedness, create or permit liens on assets, or engage in mergers or consolidations. The 2017 Term Loan Agreement also requires the Company, beginning upon the earlier to occur of (a) the initial extension of credit under the 2017 Term Loan Facility and (b) the completion of the separation, to (i) maintain an Adjusted Consolidated Net Worth (as defined in the 2017 Term Loan Agreement) calculated as of the last day of each fiscal quarter, of not less than an amount equal to the sum of (A) the greater of (x) $8,100,000,000 and (y) 72% of the actual Adjusted Consolidated Net Worth of the Company (as defined in the 2017 Term Loan Agreement and determined as of the end of the first fiscal quarter ending after the completion of the separation) plus (B) 50% of the aggregate amount of equity issuances by the Company and its subsidiaries and the equity credit portion of securities given some equity credit by certain ratings agencies after the end of the first fiscal quarter ending following the completion of the separation, and (ii) not permit the ratio of Consolidated Total Indebtedness to Consolidated Total Capitalization (each as defined in the 2017 Term Loan Agreement) to exceed 0.35 to 1.00, calculated as of the last day of each fiscal quarter.
If an event of default under the 2017 Term Loan Agreement shall occur and be continuing, the commitments thereunder may be terminated and the principal amount outstanding thereunder, together with all accrued unpaid interest and other amounts owed thereunder, may be declared immediately due and payable. In addition, the 2017 Term Loan Agreement provides that if either the Company or Brighthouse Intermediate Company becomes the subject of voluntary or involuntary proceedings under any bankruptcy, insolvency or similar law, then the commitments under the 2017 Term Loan Facility will automatically be terminated and any outstanding obligations under the 2017 Term Loan Facility will automatically become immediately due and payable
The foregoing description of the 2017 Term Loan Agreement is qualified in its entirety by reference to the complete terms and conditions of the 2017 Term Loan Agreement, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Item 1.02. Termination of a Material Definitive Agreement.
On July 21, 2017, concurrently with its entering into the 2017 Term Loan Agreement, the Company terminated the Term Loan Agreement, dated as of December 2, 2016, among the Company, JP Morgan Chase Bank, N.A., as administrative agent, and the other lenders named therein (the “2016 Term Loan Agreement”) governing the Company’s former term loan facility (the “2016 Term Loan Facility”). The Company did not incur any early termination penalties in connection with the termination of the 2016 Term Loan Agreement.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. | Description of Exhibit |
10.1 | Term Loan Agreement, dated as of July 21, 2017, among Brighthouse Financial, Inc., Bank of America, N.A., as administrative agent, and the other lenders party thereto. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BRIGHTHOUSE FINANCIAL, INC.
By: /s/ Christine M. DeBiase
Name: Christine M. DeBiase
Title: Executive Vice President, General
Title: Executive Vice President, General
Counsel and Corporate Secretary
Date: July 21, 2017
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EXHIBIT INDEX
Exhibit No. | Description of Exhibit |
10.1 | Term Loan Agreement, dated as of July 21, 2017, among Brighthouse Financial, Inc., Bank of America, N.A., as administrative agent, and the other lenders party thereto. |
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Exhibit 10.1
[EXECUTION COPY]
TERM LOAN AGREEMENT
dated as of
July 21, 2017
Among
BRIGHTHOUSE FINANCIAL, INC.
as the Company
The BANKS Party Hereto
and
BANK OF AMERICA, N.A.
as Administrative Agent
$600,000,000
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
SUMITOMO MITSUI BANKING CORPORATION,
as Joint Lead Arrangers and Joint Bookrunners
SUMITOMO MITSUI BANKING CORPORATION,
as Syndication Agent
ARTICLE I DEFINITIONS .................................................................................................... 1
SECTION 1.01 Definitions ............................................................................................. 1
SECTION 1.02 Accounting Terms and Determinations .............................................. 17
SECTION 1.03 Types of Borrowings ........................................................................... 17
ARTICLE II THE CREDITS .................................................................................................. 17
SECTION 2.01 [Reserved] ........................................................................................... 17
SECTION 2.02 [Reserved] ........................................................................................... 17
SECTION 2.03 [Reserved] ........................................................................................... 17
SECTION 2.04 Term Loan ........................................................................................... 18
SECTION 2.05 Notice of Borrowings, Conversions and Continuations of Term
Loans ................................................................................................... 18
SECTION 2.06 Funding of Term Loans ....................................................................... 19
SECTION 2.07 Evidence of Term Loans ..................................................................... 20
SECTION 2.08 Maturity of Term Loans ...................................................................... 20
SECTION 2.09 Interest Rates of Term Loans .............................................................. 21
SECTION 2.10 Fees ..................................................................................................... 21
SECTION 2.11 Termination or Reduction of Commitments ....................................... 22
SECTION 2.12 Optional Prepayments ......................................................................... 22
SECTION 2.13 Payments Generally; Pro Rata Treatment ........................................... 23
SECTION 2.14 Funding Losses ................................................................................... 24
SECTION 2.15 Computation of Interest and Fees ....................................................... 24
SECTION 2.16 [Reserved] ........................................................................................... 25
SECTION 2.17 Defaulting Banks ................................................................................. 25
ARTICLE III CONDITIONS ................................................................................................... 25
SECTION 3.01 Each Credit Extension ......................................................................... 25
SECTION 3.02 Effectiveness ....................................................................................... 26
ARTICLE IV REPRESENTATIONS AND WARRANTIES ................................................. 28
SECTION 4.01 Corporate Existence and Power .......................................................... 28
SECTION 4.02 Corporate and Governmental Authorization; Contravention .............. 28
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 ................................................................................................... 30
SECTION 4.08 Subsidiaries ......................................................................................... 30
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 ........................................................................... 31
SECTION 4.13 [Reserved] ........................................................................................... 31
SECTION 4.14 Full Disclosure .................................................................................... 31
SECTION 4.15 [Reserved] ........................................................................................... 31
SECTION 4.16 Hybrid Instruments ............................................................................. 31
SECTION 4.17 Sanctioned Persons; Anti-Corruption Laws; Patriot Act .................... 32
SECTION 4.18 EEA Financial Institutions .................................................................. 32
ARTICLE V COVENANTS ................................................................................................... 32
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 ........................................ 36
SECTION 5.07 Financial Covenants with respect to the Company ............................. 37
SECTION 5.08 Negative Pledge .................................................................................. 37
SECTION 5.09 Consolidations, Mergers and Sales of Assets ..................................... 37
SECTION 5.10 Use of Credit ....................................................................................... 37
SECTION 5.11 Obligations to be Pari Passu ................................................................ 38
SECTION 5.12 Certain Debt ........................................................................................ 38
SECTION 5.13 Intermediate Co. Guaranty .................................................................. 38
SECTION 5.14 Financial Covenants with respect to the Guarantor ............................ 38
ARTICLE VI DEFAULTS ....................................................................................................... 39
SECTION 6.01 Events of Default................................................................................. 39
SECTION 6.02 Notice of Default ................................................................................. 42
ARTICLE VII THE ADMINISTRATIVE AGENT .................................................................. 42
SECTION 7.01 Appointment and Authorization .......................................................... 42
SECTION 7.02 Agent’s Fee ......................................................................................... 42
SECTION 7.03 Agent and Affiliates ............................................................................ 42
SECTION 7.04 Action by Agent .................................................................................. 42
SECTION 7.05 Consultation with Experts ................................................................... 42
SECTION 7.06 Liability of Agent ................................................................................ 42
SECTION 7.07 Indemnification ................................................................................... 43
SECTION 7.08 Credit Decision ................................................................................... 43
SECTION 7.09 Successor Agent .................................................................................. 43
SECTION 7.10 Delegation to Affiliates ....................................................................... 44
SECTION 7.11 Lead Arrangers and Syndication Agent .............................................. 44
SECTION 7.12 Release of Intermediate Co. Guaranty ................................................ 44
SECTION 7.13 ERISA ................................................................................................. 44
ARTICLE VIII CHANGE IN CIRCUMSTANCES ................................................................... 44
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair.................. 44
SECTION 8.02 Illegality .............................................................................................. 45
SECTION 8.03 Increased Cost and Reduced Return ................................................... 45
SECTION 8.04 Base Rate Term Loans Substituted for Affected Euro-Dollar
Term Loans ......................................................................................... 47
SECTION 8.05 Taxes ................................................................................................... 47
SECTION 8.06 Regulation D Compensation ............................................................... 50
SECTION 8.07 Mitigation Obligations; Replacement of Banks .................................. 51
ARTICLE IX [Reserved] .......................................................................................................... 51
ARTICLE X MISCELLANEOUS .......................................................................................... 52
SECTION 10.01 Notices ................................................................................................ 52
SECTION 10.02 No Waivers ......................................................................................... 52
SECTION 10.03 Expenses; Indemnification; Non-Liability of Banks .......................... 52
SECTION 10.04 Sharing of Payments ........................................................................... 53
SECTION 10.05 Amendments and Waivers .................................................................. 54
SECTION 10.06 Successors and Assigns ....................................................................... 54
SECTION 10.07 Collateral ............................................................................................. 56
SECTION 10.08 New York Law .................................................................................... 56
SECTION 10.09 Judicial Proceedings ............................................................................ 56
SECTION 10.10 Counterparts; Integration; Headings ................................................... 57
SECTION 10.11 Confidentiality .................................................................................... 57
SECTION 10.12 WAIVER OF JURY TRIAL ............................................................... 58
SECTION 10.13 [Reserved] ........................................................................................... 58
SECTION 10.14 USA PATRIOT Act ............................................................................ 58
SECTION 10.15 No Fiduciary Duty .............................................................................. 58
SECTION 10.16 Acknowledgement and Consent to Bail-In of EEA Financial
Institutions ........................................................................................... 59
SECTION 10.17 Electronic Execution of Assignments and Certain Other
Documents .......................................................................................... 59
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EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Assignment and Assumption
Exhibit C Form of Intermediate Co. Guaranty
Exhibit D Form of Notice of Borrowing
SCHEDULES
Schedule I Commitments
Schedule II Material Subsidiaries
Schedule III Hybrid Instruments
Schedule IV Restructuring Transaction
Schedule V Spin-Off Transaction
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TERM LOAN AGREEMENT, dated as of July 21, 2017 among: BRIGHTHOUSE
FINANCIAL, INC., a Delaware corporation, the BANKS party hereto and BANK OF
AMERICA, N.A., as Administrative Agent.
The Company has requested that the Banks make, in one or more installments, a term
loan to it in an aggregate face or principal amount not exceeding $600,000,000, and the Banks
are prepared to make such term loans upon the terms and conditions hereof. Accordingly, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. The following terms, as used herein, have the
following meanings:
“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 Company
and its Consolidated Subsidiaries, plus (b) the aggregate Hybrid Instrument 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 Company and its Consolidated Subsidiaries prepared in accordance with GAAP, (ii) the
effects of the application of FASB ASC 815 to derivative or hedge transactions entered into with
respect to statutory reserves related to universal life insurance policies with secondary guarantees
that are designated as runoff in the Company’s financial statements prepared in accordance with
GAAP, or that the Company expects, in good faith, to be designated in runoff within 120 days of
the Effective Date and are identified by the Company to be designated for runoff in the
Company’s financial statements prepared in accordance with GAAP, and the related tax impact,
(iii) 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 (iv) all noncontrolling equity interests in subsidiaries (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 Company
and its Consolidated Subsidiaries.
“Administrative Agent” means Bank of America in its capacity as agent for the Banks
hereunder, and its successors in such capacity.
“Administrative Questionnaire” means, with respect to each Bank, an administrative
questionnaire in the form prepared by the Administrative Agent and submitted to the
Administrative Agent (with a copy to the Company) duly completed by such Bank.
“Affiliate” of any Person means any other Person directly or indirectly controlling,
controlled by or under common control with such Person.
“Agreement” means this Term Loan Agreement, as it may be amended or modified and
in effect from time to time.
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“Anti-Corruption Laws” has the meaning set forth in Section 4.17.
“Anti-Money Laundering Laws” has the meaning set forth in Section 4.17.
“Applicable Lending Office” means, as to each Bank, its office, branch or Affiliate
located at its address set forth in its Administrative Questionnaire or such other office, branch or
Affiliate of such Bank as it may hereafter designate as its Applicable Lending Office for
purposes hereof by notice to the Company and the Administrative Agent.
“Applicable Commitment Fee Rate” and “Applicable Margin” means, for any day, with
respect to the Commitment Fees payable hereunder or with respect to the interest margin on any
Base Rate Term Loan or Euro-Dollar Term Loan, as the case may be, the applicable rate per
annum set forth below under the caption “Applicable Commitment Fee Rate”, “Applicable
Margin (Base Rate Term Loans)” or “Applicable Margin (Euro-Dollar Term Loans)”,
respectively, based upon the ratings by Moody’s and S&P, respectively, applicable on such date
to the Index Debt (it being understood that on the Effective Date the Applicable Commitment
Fee Rate and Applicable Margin shall be determined based upon Category 3):
Index Debt
Ratings (S&P/ Moody’s)
Applicable
Commitment
Fee
Rate
Applicable
Margin (Euro-Dollar Term Loans)
Applicable
Margin (BaseRate Term Loans)
Category 1 ≥ A- / A3 0.150% 1.125% 0.125%
Category 2 BBB+ / Baa1 0.175% 1.250% 0.250%
Category 3 BBB / Baa2 0.225% 1.500% 0.500%
Category 4 BBB- / Baa3 0.300% 1.750% 0.750%
Category 5 < BBB- / Baa3 0.375% 2.125% 1.125%
For purposes of the foregoing, (a) if the ratings established or deemed to have been
established by Moody’s and S&P for the Index Debt shall fall within different Categories that are
one Category apart, the Applicable Commitment Fee Rate and the Applicable Margin shall be
determined by reference to the Category of the higher of the two ratings; (b) if the ratings
established or deemed to have been established by Moody’s and S&P for the Index Debt shall
fall within different Categories that are more than one Category apart, the Applicable
Commitment Fee Rate and the Applicable Margin shall be determined by reference to the
Category next below that of the higher of the two ratings; (c) if only one of Moody’s and S&P
shall have in effect a rating for the Index Debt, the Applicable Commitment Fee Rate and the
Applicable Margin shall be determined by reference to the Category of such rating; (d) if neither
Moody’s nor S&P shall have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the second to last sentence of this definition), then the applicable
rating shall be determined by reference to Category 5; and (e) if the ratings established or
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deemed to have been established by Moody’s and S&P for the Index Debt shall be changed
(other than as a result of a change in the rating system of Moody’s or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating agency,
irrespective of when notice of such change shall have been furnished by the Company to the
Administrative Agent and the Banks pursuant to Section 5.01 or otherwise. Each change in the
Applicable Commitment Fee Rate and the Applicable Margin shall apply during the period
commencing on the effective date of such change and ending on the date immediately preceding
the effective date of the next such change. If the rating system of Moody’s or S&P shall change,
or if either such rating agency shall cease to be in the business of rating corporate debt
obligations, the Company and the Banks shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Commitment Fee Rate and the
Applicable Margin shall be determined by reference to the rating of Moody’s and/or S&P, as the
case may be, most recently in effect prior to such change or cessation. References herein to
“Applicable Margin” shall refer to the Applicable Margin for the relevant Type of Term Loan, as
applicable.
“Applicable Percentage” means, with respect to any Bank at any time, the percentage of
the Term Loan Facility represented by (a) at any time during the Availability Period, the sum of
such Bank’s (i) undrawn Commitment at such time plus (ii) the principal amount of such Bank’s
Term Loan, (b) thereafter, the principal amount of such Bank’s Term Loan at such time,
provided that in the case of Section 2.17 when a Defaulting Bank shall exist, “Applicable
Percentage” shall mean the percentage of the total principal amount of the Term Loan (and
undrawn Commitments, if any) (disregarding the principal amount of any Defaulting Bank’s
portion of the Term Loan and undrawn Commitment) represented by such Bank’s portion of the
principal amount of the Term Loans (and undrawn Commitments, if any).
“Assignee” has the meaning set forth in Section 10.06(c).
“Assignment and Assumption” means an assignment and assumption entered into by a
Bank and an Assignee (with the consent of any party whose consent is required by Section
10.06), and accepted by the Administrative Agent, in the form of Exhibit B or any other form
approved by the Administrative Agent.
“Availability Effective Date” means the initial date the conditions set forth in Section
3.01 are satisfied.
“Availability Period” means the period from and including the Availability Effective
Date to earlier of (x) the Availability Termination Date (including such date) and (y) termination
of the Commitments pursuant to Section 2.11, Section 6.01 or otherwise (excluding such date
(unless such termination is as of a result of the Availability Termination Date)).
“Availability Termination Date” means August 15, 2017.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the
applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
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“Bail-In Legislation” means, 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 for such EEA Member Country from time to time which
is described in the EU Bail-In Legislation Schedule.
“Bank” means each Person listed under the caption “BANKS” on the signature pages
hereof, and each other Person that shall become a party hereto as a Bank pursuant to this
Agreement (other than any such Person that ceases to be a Bank by means of assignment
pursuant to this Agreement), together with its successors.
“Bank of America” means Bank of America, N.A. and its successors.
“Bankruptcy Event” means, with respect to any Person, such Person becomes the subject
of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, custodian, assignee for the benefit of creditors or similar Person charged with the
reorganization or liquidation of its business appointed for it, or, in the good faith determination
of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of any ownership interest, or the acquisition of any
ownership interest, in such Person by a governmental body, agency or official or instrumentality
thereof, provided, further, that such ownership interest does not result in or provide such Person
with immunity from the jurisdiction of courts within the United States or from the enforcement
of judgments or writs of attachment on its assets or permit such Person (or such governmental
body, agency or official or instrumentality) to reject, repudiate, disavow or disaffirm any
contracts or agreements made by such Person.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the
Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly
announced from time to time by Bank of America as its “prime rate,” and (c) the LIBO Rate plus
1.00%, provided further that if the Base Rate shall be less than zero, such rate shall be deemed to
zero for the purposes of this Agreement. The “prime rate” is a rate set by Bank of America
based upon various factors including Bank of America’s costs and desired return, general
economic conditions and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such prime rate
announced by Bank of America shall take effect at the opening of business on the day specified
in the public announcement of such change.
“Base Rate Borrowing” shall have the meaning set forth in Section 1.03.
“Base Rate Term Loan” means the portion of the Term Loan that bears interest by
reference to the Base Rate in accordance with the applicable Notice of Borrowing, Article VIII
or as otherwise set forth herein.
“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.
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“Brighthouse Reinsurance” means Brighthouse Reinsurance Company of Delaware, a
Delaware corporation.
“Borrowing” shall have the meaning set forth in Section 1.03.
“Business Day” means any day other than a Saturday, Sunday or other day on which
commercial banks are authorized to close under the Laws of, or are in fact closed in, the state
where the Administrative Agent’s office set forth on the Administrative Agent’s signature page
hereto is located and, if such day relates to any Euro-Dollar Rate Loan, means any such day that
is also a London Banking 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:
(i) prior to the Spin-Off Effective Date, 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 MetLife, or
(ii) from and after the Spin-Off Effective Date, 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 25% or more of the outstanding shares of common stock of the Company;
provided that, for the avoidance of doubt, the consummation of the Spin-Off Transaction
and the “distribution” of common stock of the Company to the shareholders of MetLife on the
“distribution date” (as such terms are defined in the Specified Form 10) shall not be deemed to
be a Change of Control.
“Code” means the Internal Revenue Code of 1986, as amended, or any successor statute.
“Commitment” means, with respect to any Bank, its obligation to make the Term Loan to
the Company pursuant to Section 2.04 in an aggregate principal amount over all installments
thereof not to the exceed the amount set forth opposite such Bank’s name on Schedule I hereto
(reflecting the Commitments on the date hereof) or in the Assignment and Assumption or other
instrument executed and delivered hereunder pursuant to which such Bank becomes a party
hereto, as applicable, as such amount may be reduced from time to time pursuant to this
Agreement, including, without limitation, reductions pursuant to Section 2.04 and 2.11(c). The
aggregate amount of the Banks’ Commitments is $600,000,000 as of the date hereof. The
Commitments of the Banks are several and not joint and no Bank shall be responsible for any
other Bank’s failure to make the Term Loan hereunder.
6
“Committed Borrowing” means each advance of the Term Loan, or portion thereof, that
is requested by the Company pursuant to Section 2.04.
“Company” means Brighthouse Financial, Inc., a Delaware corporation, and its
successors.
“Consolidated Subsidiary” means, at any date, any Subsidiary or other entity the accounts
of which would be consolidated with those of the Company in its consolidated financial
statements if such statements were prepared as of such date, and for the avoidance of doubt, prior
to the Spin-Off Effective Date, including any corporation or other entity that the Company is
anticipated to own on the Spin-Off Effective Date and the accounts of which are anticipated to be
consolidated with the Company from and after the Spin-Off Effective Date and that is included in
the combined financial statements of the Company and its related companies in the Specified
Form 10.
“Consolidated Total Capitalization” means, at any date, for the Company 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 Company 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 Hybrid Instruments of such Person
to the extent such amount would not be included in the determination of Adjusted Consolidated
Net Worth.
“Credit Documents” means (a) this Agreement, (b) the Notes, (c) the Intermediate Co.
Guaranty (if applicable), and (d) the Fee Letter.
“Credit Party” means the Administrative Agent or any Bank.
“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 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.
7
“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.
“Defaulting Bank” means any Bank that (a) has failed, within two Business Days of the
date required to be funded or paid, to (i) fund any portion of its Term Loans or (ii) pay over to
any Credit Party any other amount required to be paid by it hereunder, unless, in the case of
clause (i) above, such Bank notifies the Administrative Agent in writing that such failure is the
result of such Bank’s good faith determination that a condition precedent to funding (specifically
identified and including the particular default, if any) has not been satisfied, (b) has notified the
Company or any Credit Party in writing, or has made a public statement to the effect, that it does
not intend or expect to comply with any of its funding obligations under this Agreement (unless
such writing or public statement indicates that such position is based on such Bank’s good faith
determination that a condition precedent (specifically identified and including the particular
default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under
other agreements in which it commits to extend credit, (c) has failed, within three Business Days
after request by the Administrative Agent, acting in good faith, to provide a certification in
writing from an authorized officer of such Bank that it will comply with its obligations (and is
financially able to meet such obligations) to fund prospective Term Loans under this Agreement,
provided that such Bank shall cease to be a Defaulting Bank pursuant to this clause (c) upon
receipt by the Administrative Agent of such certification in form and substance satisfactory to
the Administrative Agent, or (d) has become the subject of (A) a Bankruptcy Event or (B) a Bail-
In Action.
“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.
“Dollars” and the sign “$” means lawful money in the United States of America.
“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)
8
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.
“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 Company, any such issuance or sale by such
Subsidiary to the Company or another Subsidiary or any capital contribution by the Company 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 Company 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 Company, 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.
“Euro-Dollar Borrowing” shall have the meaning set forth in Section 1.03.
9
“Euro-Dollar Term Loan” means the portion of the Term Loan that bears interest by
reference to the LIBO Rate (other than the LIBO Rate component of the Base Rate) in
accordance with the applicable Notice of Borrowing or as otherwise set forth herein.
“Euro-Dollar Reserve Percentage” means, for any day, that percentage (expressed as a
decimal) which is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve requirement for a
member bank of the Federal Reserve System in New York City with deposits exceeding five
billion dollars in respect of “Eurocurrency liabilities” (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on Euro-Dollar Term
Loans is determined or any category of extensions of credit or other assets which includes loans
by a non-United States office of any Bank to United States residents).
“Event of Default” has the meaning set forth in Section 6.01.
“Existing Credit Agreement” means that certain Term Loan Agreement, dated as of
December 2, 2016, by and among the Company, the banks party thereto and JPMorgan Chase
Bank, N.A., as administrative agent, as amended or otherwise modified and in effect from time
to time.
“Federal Funds Rate” means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal
Reserve System, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds
Rate for such day shall be such rate on such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and (b) if no such rate is so published on such
next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America
on such day on such transactions as determined by the Administrative Agent.
“Fee Letter” means that certain letter agreement, dated as of the date hereof, between the
Company, Bank of America and SMBC, as amended and in effect from time to time.
“Financial Officer” means the chief financial officer, principal accounting officer, treasurer,
assistant treasurer, or other senior financial officer of the Company, in each case, to the extent duly
authorized to deliver certifications hereunder and, solely for purposes of notices given pursuant to
Article II, any other officer or employee of the Company so designated by any of the foregoing
officers in a notice to the Administrative Agent or any other officer or employee of the Company
designated in or pursuant to an agreement between the Company and the Administrative Agent.
Any document delivered hereunder that is signed by a Financial Officer of the Company shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of the Company and such Financial Officer shall be conclusively presumed to
have acted on behalf of the Company.
“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
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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.
“Guarantor” means the Intermediate Co. during the Guaranty Period.
“Guaranty Period” means the period from and including the date on which the Guarantor
shall have executed and delivered the Intermediate Co. Guaranty (which shall, for the avoidance
of doubt, be prior to the borrowing of the initial installment of the Term Loan, unless the
condition set forth in Section 3.01(e)(i) shall have been satisfied) through and including the date
such Intermediate Co. Guaranty is released (a) by the Administrative Agent pursuant to Section
7.12 hereof or (b) with the consent of the Banks pursuant to Section 10.05(vi).
“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 Company shall have provided evidence of such equity credit to the
Administrative Agent), provided that the term “Hybrid Instruments” shall exclude any Securities
to the extent recorded in the shareholder’s equity section of the combined or consolidated
balance sheet of the Company 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) and (iii) the
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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.
“Impacted Interest Period” has the meaning set forth in Section 2.09(b).
“Index Debt” means senior, unsecured, long-term indebtedness for borrowed money of
the Company that is not guaranteed by any other Person or subject to any other credit
enhancement, provided that, prior to the Spin-Off Effective Date, the Company’s 3.700% Senior
Notes Due 2027 and 4.700% Senior Notes due 2047 shall constitute Index Debt notwithstanding
the unsecured guaranty thereof provided by MetLife.
“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, including, without limitation, Brighthouse
Reinsurance.
“Interest Period” means, with respect to each Euro-Dollar Borrowing, the period
commencing on the date of such Borrowing and ending one, two, three or six months (or, if
available, nine or twelve months with the consent of all of the Banks) thereafter, as the Company
may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period shall
end on the next preceding Business Day;
(b) any Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business Day of a calendar
month; and
(c) any Interest Period which begins before the Termination Date and would
otherwise end after the Termination Date shall end on the Termination Date.
For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing
is made and thereafter shall be the effective date of the most recent conversion or continuation of
such Borrowing.
“Intermediate Co.” means Brighthouse Holdings, LLC, a Delaware limited liability
company.
“Intermediate Co. Guaranty” means a Guarantee by Intermediate Co. of the Obligations
in the form of Exhibit C or otherwise in form and substance satisfactory to the Administrative
Agent.
“Lead Arrangers” means MLPFS and SMBC in their capacities as joint lead arrangers
and joint bookrunners.
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“LIBO Rate” means:
(a) for any Interest Period with respect to a Euro-Dollar Term Loan, the rate per annum
equal to the London Interbank Offered Rate (“LIBOR”) or a comparable or successor rate, which
rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen
page (or such other commercially available source providing such quotations as may be
designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London
time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits
(for delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period; and
(b) for any interest calculation with respect to a Base Rate Term Loan on any date,
the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two
Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing
that day; and
(c) if the LIBO Rate shall be less than zero, such rate shall be deemed zero for purposes
of this Agreement;
provided that to the extent a comparable or successor rate is approved by the
Administrative Agent in connection herewith, the approved rate shall be applied in a manner
consistent with market practice; provided, further that to the extent such market practice is not
administratively feasible for the Administrative Agent, such approved rate shall be applied in a
manner as otherwise reasonably determined by the Administrative Agent.
“LIBOR” has the meaning set forth in the definition of LIBO Rate.
“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 Company 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.
“London Banking Day” means any day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar market.
“Material Adverse Effect” means a material adverse effect on (a) business, assets,
property or financial condition of the Company 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 Banks under the Credit Documents.
“Material Subsidiary” means (a) Intermediate Co., (b) Brighthouse Reinsurance, (c) any
other Subsidiary that has total assets (including, without limitation, Capital Stock of its
Subsidiaries) in excess of 10% of the total assets of the Company and its Consolidated
Subsidiaries (based upon and as of the date of the filing of the most recent combined or
consolidated balance sheet of the Company furnished pursuant to Section 4.04 or 5.01), and (d)
any Subsidiary formed or organized after the Effective Date that owns, directly or indirectly,
greater than 10% of the Capital Stock of any other Material Subsidiary. In the event that the
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aggregate total assets of the Material Subsidiaries represents less than 80% of the consolidated
total assets of the Company and its Consolidated Subsidiaries (as reported on the Company’s
most recent combined or consolidated balance sheet furnished pursuant to Section 4.04 or 5.01),
the Company shall promptly designate 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 Company and its
Consolidated Subsidiaries (as reported on the Company’s most recent combined or consolidated
balance sheet furnished pursuant to Section 4.04 or 5.01).
“MetLife” means MetLife, Inc., a Delaware corporation.
“MLPFS” means Merrill Lynch, Pierce, Fenner & Smith Incorporated (or any other
registered broker-dealer wholly-owned by Bank of America Corporation to which all or
substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment
banking, commercial lending services or related businesses may be transferred following the
Effective Date.
“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.
“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 Company) 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 Company
or any of its Subsidiaries.
“Non-Consenting Bank” means any Bank that does not approve any consent, waiver or
amendment that (a) requires the approval of each Bank or each affected Banks in accordance
with the terms of Section 10.05 and (b) has been approved by the Required Banks.
“Non-Defaulting Banks” means any Bank that is not a Defaulting Bank.
“Non-Operating Indebtedness” of any Person means, at any date, all Debt (other than
Operating Indebtedness) of such Person.
“Notes” means a promissory note or notes of the Company, substantially in the form of
Exhibit A hereto, evidencing the obligation of the Company to repay the Term Loan made to it
hereunder, and “Note” means any one of such promissory notes issued hereunder.
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“Notice of Borrowing” means a notice of (a) a Borrowing, (b) a conversion of a
Borrowing from one Type to the other, or (c) a continuation of Euro-Dollar Term Loans,
pursuant to Section 2.05, which shall be substantially in the form of Exhibit D or such other form
as may be approved by the Administrative Agent (including any form on an electronic platform
or electronic transmission system as shall be approved by the Administrative Agent),
appropriately completed and signed by a Financial Officer of the Company.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and
duties of the Company and the Guarantor arising under any Credit Document or otherwise with
respect to the Term Loan, 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 the Company, Guarantor 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
“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 Company and its Subsidiaries being called upon to make such principal and interest
payments or (e) excluded entirely from financial leverage by both S&P and Moody’s in their
evaluation of such Person.
“Parent” means, with respect to any Bank, any Person as to which such Bank is, directly
or indirectly, a subsidiary.
“Participant” has the meaning set forth in Section 10.06(b).
“Participant Register” has the meaning set forth in Section 10.06(b).
“Patriot Act” has the meaning set forth in Section 4.17.
“Payment Account” means an account designated by the Administrative Agent in a notice
to the Company and the Banks 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.
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“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.
“Quarterly Dates” means the last Business Day of March, June, September and December
in each year, the first of which shall be the first such day after the date hereof.
“Register” has the meaning set forth in Section 2.07(b).
“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.
“Required Banks” means, as of any date of determination, Banks holding more than
66.7% of the Term Loan Facility at such time; provided that, if as of such date of determination,
there are more than three Banks, the aforementioned percentage shall be 50%. For the purposes
of making a determination of the Required Banks, (i) if two or more Banks are Affiliates, such
Banks will be considered as a single Bank and (ii) any Defaulting Bank and the portion of the
Term Loan Facility held by any Defaulting Bank shall be excluded.
“Restructuring Effective Date” means the date the Restructuring Transaction is
consummated, in a manner reasonably satisfactory to the Administrative Agent.
“Restructuring Transaction” means the corporate restructuring described in the Specified
Form 10, pursuant to which, among other things, (i) the Company shall own all of the voting
Capital Stock of Intermediate Co., (ii) Intermediate Co. shall own, directly or indirectly, all of
the Capital Stock of Brighthouse Life Insurance Company (formerly known as MetLife
Insurance Company USA), Brighthouse Securities, LLC, Brighthouse Services, LLC,
Brighthouse Investment Advisers, LLC (formerly known as MetLife Advisers, LLC),
Brighthouse Life Insurance Company of NY (formerly known as First MetLife Investors
Insurance Company), New England Life Insurance Company and each other Insurance
Subsidiary to be acquired by the Company and Intermediate Co. and (iii) the ownership structure
of the Company and its Subsidiaries shall be as set forth on Schedule IV.
“Sanctions” has the meaning set forth in Section 4.17.
“Sanctions Laws” has the meaning set forth in Section 4.17.
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“S&P” means Standard and Poor’s Ratings Services.
“SEC” means Securities and Exchange Commission or any governmental body, agency
or official succeeding to its principal functions.
“SMBC” means Sumitomo Mitsui Banking Corporation.
“Specified Form 10” means that certain Form 10, filed by the Company with the
Securities and Exchange Commission on October 5, 2016, as amended through June 30, 2017,
and as may be further amended in a manner not adverse to the Administrative Agent and the
Banks or otherwise with the consent of the Administrative Agent.
“Spin-Off Effective Date” means the date the Spin-Off Transaction is consummated, in a
manner reasonably satisfactory to the Administrative Agent.
“Spin-Off Transaction” means the distribution and separation transaction described in the
Specified Form 10, pursuant to which, among other things, (i) MetLife will not own more than
19.9% of the Company’s Capital Stock, (ii) the Restructuring Transaction shall have been
consummated and (iii) the ownership structure of the Company and its Subsidiaries after giving
effect to the Spin-Off Transaction shall be as set forth on Schedule V.
“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 Company, and,
prior to the Spin-Off Effective Date, any corporation or other entity that the Company is
anticipated to own on the Spin-Off Effective Date and that is included in the combined financial
statements of Company and its related companies in the Specified Form 10.
“Syndication Agent” means SMBC in its capacity as syndication agent.
“Term Loan” and “Term Loans” means the term loan made by each Bank to the
Company pursuant to Section 2.04, which may be made in multiple installments as more
particularly set forth in such Section 2.04 (or, if context so requires, the aggregate term loan
made by all of the Banks).
“Term Loan Facility” means, at any time, (a) at any time during the Availability Period,
the sum of (i) the aggregate amount of Commitments at such time and (ii) the aggregate
outstanding principal amount of the Term Loans of all Banks at such time and (b) thereafter, the
aggregate outstanding principal amount of the Term Loans of all Banks at such time.
17
“Termination Date” means the earlier to occur of (i) December 2, 2019 or, if such day is
not a Business Day, the next preceding Business Day or (ii) if the Spin-Off Transaction has not
occurred on or prior to such date, August 15, 2017.
“Type”, when used in reference to any Borrowing, refers to whether the Borrowing is of
a Base Rate Term Loan or a Euro-Dollar Term Loan.
“Write-Down and Conversion Powers” means, 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.
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 Company or the Required Banks
shall so request, the Administrative Agent, the Banks and the Company 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 Required Banks); 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 Company shall provide to the Administrative Agent and the Banks
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.
SECTION 1.03 Types of Borrowings. The term “Borrowing” denotes each the
Term Loan or portion thereof that is made to the Company pursuant to Section 2.04, as converted
or continued pursuant to Section 2.05(b), on a single date and for a single Interest Period.
Borrowings are classified for purposes of this Agreement by reference to the pricing of the
portion of the Term Loan comprising such Borrowing (e.g., a “Euro-Dollar Borrowing” is a
Borrowing comprised of Euro-Dollar Term Loans and a “Base Rate Borrowing” is a Borrowing
comprised of Base Rate Term Loans).
ARTICLE II
THE CREDITS
SECTION 2.01 [Reserved].
SECTION 2.02 [Reserved].
SECTION 2.03 [Reserved].
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SECTION 2.04 Term Loan. At any time and from time to time during the
Availability Period each Bank severally agrees, on the terms and conditions set forth in this
Agreement, to make a Term Loan in up to three installments in Dollars to the Company pursuant
to this Section in an aggregate principal amount not to exceed such Bank’s Commitment, which
Commitment shall be permanently and irrevocably reduced on a dollar for dollar basis in an
amount equal to the principal amount of each installment of the Term Loan made under this
Agreement by such Bank on the date such installment is made, provided that, prior to the day
after the Spin-Off Effective Date the aggregate principal amount of Term Loans outstanding
shall not exceed $500,000,000; and, provided, further, no conversion or continuation of Euro-
Dollar Term Loans shall be deemed an installment. Each Borrowing shall be in an aggregate
principal amount of $25,000,000 or any larger multiple of $1,000,000 and shall be made from
the several Banks ratably in proportion to their respective Commitments. Once prepaid or
repaid, the Term Loan under this Agreement may not be reborrowed.
SECTION 2.05 Notice of Borrowings, Conversions and Continuations of Term
Loans.
(a) Each Committed Borrowing, each conversion of a Borrowing from one
Type to the other, and each continuation of Euro-Dollar Term Loans shall be made upon the
Company’s irrevocable notice to the Administrative Agent, which may be given by (A)
telephone, or (B) a Notice of Borrowing; provided that any telephonic notice must be confirmed
immediately by delivery to the Administrative Agent of a Notice of Borrowing. Each such
Notice of Borrowing must be received by the Administrative Agent not later than 11:00 a.m. (i)
three (3) Business Days prior to the requested date of any Borrowing of, conversion to or
continuation of Euro-Dollar Term Loans or of any conversion of Euro-Dollar Term Loans to
Base Rate Term Loans, and (ii) on the requested date of any Borrowing of Base Rate Term
Loans. Each Borrowing of, conversion to or continuation of Euro-Dollar Term Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
Borrowing of or conversion to Base Rate Term Loans shall be in a principal amount of $500,000
or a whole multiple of $100,000 in excess thereof. Each Notice of Borrowing shall (A) specify
(i) whether the Company is requesting a Committed Borrowing, a conversion of a Borrowing
from one Type to the other, or a continuation of a Euro-Dollar Borrowing, (ii) the requested date
of the Committed Borrowing, conversion or continuation, as the case may be (which shall be a
Business Day), (iii) the aggregate principal amount of Term Loans to be borrowed, converted or
continued, (iv) the Type of Term Loans to be borrowed or to which existing Term Loans are to
be converted, and (v) if applicable, the duration of the Interest Period with respect thereto,
subject to the definition of Interest Period, and (B) certify that all other conditions in Section
3.01(a) or 3.01(b), as applicable, have been satisfied on or prior to the date of such Committed
Borrowing. The Company may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably among the Banks
holding the Term Loans comprising such Borrowing, and the Term Loans comprising each such
portion shall be considered a separate Borrowing. If the Company fails to specify a Type of
Term Loan in a Notice of Borrowing or if the Company fails to give a timely notice requesting a
conversion or continuation, then the applicable Term Loans shall be made as, or converted to,
Base Rate Term Loans. Any such automatic conversion to Base Rate Term Loans shall be
effective as of the last day of the Interest Period then in effect with respect to the applicable
Euro-Dollar Term Loans. If the Company requests a Borrowing of, conversion to, or
19
continuation of Euro-Dollar Term Loans in any such Notice of Borrowing, but does not specify
an Interest Period, then the Company will be deemed to have selected an Interest Period of one
month. Promptly following receipt of a Notice of Borrowing, the Administrative Agent shall
advise each Bank of the details thereof and of such Bank’s portion of each resulting Borrowing.
Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is
continuing and the Administrative Agent, at the request of the Required Banks, so notifies the
Company, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may
be converted to or continued as a Euro-Dollar Borrowing and (ii) unless repaid, each Euro-Dollar
Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period
applicable thereto.
(b) Subject to the payment of amounts provided in Section 2.14, a Euro-
Dollar Term Loan may be continued or converted only on the last day of an Interest Period for
such Euro-Dollar Term Loan. During the existence of a Default, no Term Loans may be
requested as, converted to or continued as Euro-Dollar Term Loans without the consent of the
Required Banks.
SECTION 2.06 Funding of Term Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank’s share of such Borrowing
and such Notice of Borrowing shall not thereafter be revocable by the Company.
(b) Not later than 12:00 noon (New York City time) (or 1:00 p.m. (New York
City time) in the case of any Base Rate Borrowing) on the date of each Borrowing, each Bank
participating therein shall (except as provided in subsection (c) of this Section) make available its
share of such Borrowing, in Federal or other funds immediately available in New York City, to
the Administrative Agent at its address specified in or pursuant to Section 10.01. Unless the
Administrative Agent determines that any applicable condition specified in Article III has not
been satisfied, the Administrative Agent will make the funds so received from the Banks
available to the Company at the Administrative Agent’s aforesaid address.
(c) [Reserved].
(d) Unless the Administrative Agent shall have received notice from a Bank
prior to the time of any Borrowing that such Bank will not make available to the Administrative
Agent such Bank’s share of such Borrowing, the Administrative Agent may assume that such
Bank has made such share available to the Administrative Agent on the date of such Borrowing
in accordance with subsection (b) of this Section and the Administrative Agent may, in reliance
upon such assumption, make available to the Company on such date a corresponding amount. If
and to the extent that such Bank shall not have so made such share available to the
Administrative Agent, such Bank and the Company severally agree to repay to the
Administrative Agent forthwith on demand such corresponding amount together with interest
thereon, for each day from the date such amount is made available to the Company until the date
such amount is repaid to the Administrative Agent, at (i) in the case of the Company, a rate per
annum equal to the higher of the Federal Funds Rate and the interest rate applicable thereto
pursuant to Section 2.09 and (ii) in the case of such Bank, the higher of the Federal Funds Rate
20
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation. If such Bank shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Bank’s Term Loan included
in such Borrowing for purposes of this Agreement.
SECTION 2.07 Evidence of Term Loans.
(a) Each Bank shall maintain in accordance with its usual practice records
evidencing the indebtedness of the Company to such Bank resulting from each Term Loan made
by such Bank, including the amounts of principal and interest payable and paid to such Bank
from time to time hereunder, and setting forth the Commitments of the Banks.
(b) The Administrative Agent, acting solely for this purpose as an agent of the
Company, shall maintain a copy of each Assignment and Assumption delivered to it and a
register for the recordation of the names and addresses of the Banks and the Commitments of,
and principal amounts (and stated interest) of the Term Loan owing to, each Bank from time to
time (the “Register”). The entries in the Register shall be conclusive absent clear error, and the
Company, the Administrative Agent and the Banks shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Company and any Bank at any
reasonable time and from time to time upon reasonable prior notice.
(c) The failure of any Bank or the Administrative Agent to maintain such
records required by this Section 2.07 or any error therein shall not in any manner affect the
obligations of the Company to repay the Term Loan in accordance with the terms of this
Agreement.
(d) Any Bank may request that the Term Loan of such Bank to the Company
be evidenced by a single Note, in substantially the form of Exhibit A hereto with appropriate
modifications to reflect the fact that it evidences the Term Loan of the relevant Type, payable by
the Company to such Bank for the account of its Applicable Lending Office. In such event, the
Company shall prepare, execute and deliver to such Bank a Note payable to such Bank (or, if
requested by such Bank, to such Bank and its registered assigns). Thereafter, once recorded in
and to the extent consistent with the information contained in the Register, the Term Loan
evidenced by such Note and interest thereon shall at all times (including after assignment
pursuant to Section 10.06) be represented by one or more Notes in such form payable to the
payee named therein (or, to such payee and its registered assigns). For the Term Loan evidenced
by a Note pursuant to this clause (d), any transfer of a Note must be recorded in the Register in
order to be effective.
SECTION 2.08 Maturity of Term Loans. Each Term Loan shall mature, and the
Company hereby unconditionally promises to pay the unpaid principal of each Term Loan
(together with accrued interest thereon and all other amounts payable under this Agreement) on
the Termination Date.
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SECTION 2.09 Interest Rates of Term Loans.
(a) Each Base Rate Term Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Base Rate Term Loan is made until it becomes
due, at a rate per annum equal to the sum of the Base Rate for such day plus the Applicable
Margin. Such interest shall accrue and be payable quarterly in arrears on each Quarterly Date and
on the Termination Date (and, if later, the date the Term Loan shall be paid in full). Any overdue
principal of or interest on any Base Rate Term Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the Base Rate for such day
plus the Applicable Margin.
(b) Each Euro-Dollar Term Loan shall bear interest on the outstanding
principal amount thereof, for the Interest Period applicable thereto, at a rate per annum equal to
the sum of the applicable LIBO Rate plus the Applicable Margin. Such interest shall be payable
(i) for each Interest Period on the last day thereof and, if such Interest Period is longer than three
months, at intervals of three months after the first day thereof and (ii) in the event of any
conversion of any Euro-Dollar Term Loan prior to the end of the current Interest Period therefor,
accrued interest on such Euro-Dollar Term Loan shall be payable on the effective date of such
conversion.
(c) Any overdue principal of any Euro-Dollar Term Loan shall bear interest,
payable on demand, for each day from and including the date payment thereof was due to but
excluding the date of actual payment, at a rate per annum equal to the sum of 2% plus the
Applicable Margin plus the average (rounded upward, if necessary, to the next higher 1/16 of
1%) of the respective rates per annum (as of the date of determination) at which one-day (or, if
such amount due remains unpaid more than three Business Days, then for such other period of
time not longer than six months as the Administrative Agent may select) deposits in Dollars in an
amount approximately equal to such overdue payment due to the Person serving as the
Administrative Agent are offered to such Person in the London interbank market for the
applicable period determined as provided above (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 2% plus the Base Rate
for such day plus the Applicable Margin). Any overdue interest on any Euro-Dollar Term Loan
shall bear interest, payable on demand, for each day from and including the date payment thereof
is due to but excluding the date of actual payment, at a rate per annum equal to the sum of 2%
plus the Base Rate for such day plus the Applicable Margin.
(d) The Administrative Agent shall determine each interest rate applicable to
the Term Loans and other amounts hereunder. The Administrative Agent shall give prompt
notice to the Company and the Banks of each rate of interest so determined, and its
determination thereof shall be conclusive in the absence of manifest error.
SECTION 2.10 Fees.
(a) The Company agrees to pay to the Administrative Agent for account of
each Bank a Commitment Fee, which shall accrue at the Applicable Commitment Fee Rate, on
the daily undrawn amount of the Commitment of such Bank during the period from and
including the date hereof to the date on which the Commitments are reduced to zero and
22
terminated. Accrued Commitment Fees shall be payable on each Quarterly Date, commencing on
the first such date after the Effective Date; provided that all such fees shall be payable on the
earlier of (i) the Availability Termination Date, and (ii) date on which the Commitments are
terminated and reduced to zero and any such fees accruing after such date shall be payable on
demand.
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) All fees payable hereunder shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, as applicable, to the Banks entitled
thereto. Fees paid hereunder shall not be refundable under any circumstances.
SECTION 2.11 Termination or Reduction of Commitments.
(a) The Commitments shall be automatically and permanently reduced on a
dollar for dollar basis by an amount equal to the principal amount of each Committed Borrowing
under this Agreement on the date of such Committed Borrowing. Unless previously terminated
or reduced to zero, the Commitments shall be automatically and permanently reduced to zero and
terminated on the Availability Termination Date. For the avoidance of doubt, the Commitments
shall automatically and permanently terminate upon being reduced to zero.
(b) During the Availability Period, the Company may, upon at least three
Business Days’ notice to the Administrative Agent, terminate at any time, or proportionately and
permanently reduce from time to time by an aggregate amount of $10,000,000 or any larger
multiple of $5,000,000, the undrawn portion of the aggregate amount of the Commitments.
Upon receipt of such a notice, the Administrative Agent shall promptly notify each Bank of the
contents thereof and of such Bank’s ratable share of such reduction (if such notice is a notice of
reduction) and such notice shall not thereafter be revocable by the Company. Any termination or
reduction of the Commitments shall be permanent.
SECTION 2.12 Optional Prepayments.
(a) The Company may, upon at least one Business Day’s notice to the
Administrative Agent (or such shorter time as the Administrative Agent may agree in its sole
discretion), prepay any Base Rate Borrowing made to the Company in whole at any time, or
from time to time in part in amounts aggregating $5,000,000 or any larger multiple of
$1,000,000, by paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment.
(b) The Company may, upon notice to the Administrative Agent by 10:00
a.m., New York City time, at least three Business Days prior to the date of prepayment, prepay
any Euro-Dollar Borrowing made to the Company in whole at any time, or from time to time in
part in amounts aggregating $5,000,000 or any larger multiple of $1,000,000, by paying the
principal amount to be prepaid together with (x) accrued interest thereon to the date of
23
prepayment and (y) all losses and expenses (if any) relating thereto which are (i) determined
pursuant to Section 2.14 and (ii) notified to the Company by the relevant Bank at least one
Business Day prior to the date of such prepayment, provided that the failure of any Bank to so
notify the Company of the amount of any such loss or expense shall not relieve the Company of
its obligation to pay the same.
(c) Each prepayment pursuant to this Section shall be applied to prepay
ratably the Term Loan of the several Banks included in the relevant Borrowing being prepaid.
Upon receipt of a notice of prepayment pursuant to this Section, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank’s ratable share (if any) of
such prepayment and such notice shall not thereafter be revocable by the Company; provided,
that any notice of prepayment delivered by the Company may state that such notice is
conditioned upon the effectiveness of other transactions, in which case such notice may be
revoked by the Company (by notice to the Administrative Agent on or before the specified
effective date) if such condition is not satisfied.
SECTION 2.13 Payments Generally; Pro Rata Treatment.
(a) The Company shall make or cause to be made each payment required to
be made by it hereunder (whether principal of or interest on the Term Loan, fees, amounts under
Article VIII 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 Administrative Agent, 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 Administrative Agent at its Payment Account, except as
otherwise expressly provided in the relevant Credit Document, and except that payments
pursuant to Section 10.03 and Article VIII shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for account of any
other Person to the appropriate recipient promptly following receipt thereof. 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
Administrative Agent to pay fully all amounts of principal of or interest on the Term Loan and
fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due
hereunder in respect of the Term Loan (as applicable), pro rata among the Banks in accordance
with the amounts of interest and fees then due to the Banks, and (ii) second, to pay such principal
in respect of the Term Loans (as applicable) then due hereunder, pro rata among the Banks in
accordance with the amounts of principal of the Term Loan then due to the Banks.
(c) Except to the extent otherwise provided herein (including, without
limitation, in clause (e) hereof): (i) each payment of principal in respect of the Term Loans shall
be for account of the Banks (other than Defaulting Banks), pro rata in accordance with the
amounts of principal of the Term Loan then due and payable to the Banks (other than Defaulting
24
Banks); (ii) each termination or reduction of the undrawn portion of Commitments under Section
2.11 or otherwise hereunder shall be applied to the respective undrawn portion of the
Commitments of the Banks, pro rata in accordance with their respective Applicable Percentages;
and (iii) each payment of interest and Commitment Fees shall be for account of the Banks (other
than Defaulting Banks), pro rata in accordance with the amounts of interest and Commitment
Fees (as the case may be) then due and payable to the Banks (other than Defaulting Banks).
(d) Unless the Administrative Agent shall have received notice from the
Company prior to the date on which any payment is due to the Administrative Agent for account
of the Banks hereunder that the Company will not make such payment, the Administrative Agent
may assume that the Company made such payment on such date in accordance herewith and
may, in reliance upon such assumption, distribute to the Banks the amount due. In such event, if
the Company has not in fact made such payment, then each of the Banks severally agrees to
repay to the Administrative Agent forthwith on demand the amount so distributed to such Bank
with interest thereon, for each day from and including the date such amount is distributed to it to
but excluding the date of payment to the Administrative Agent, at the higher of the Federal
Funds Rate and a rate determined by Administrative Agent in accordance with banking industry
rules for interbank compensation.
(e) If any Bank shall fail to make any payment required to be made by it
pursuant to Section 2.06(d), 2.13(d), or 7.07 or shall otherwise be a Defaulting Bank, then the
Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof,
(i) apply any amounts thereafter received by the Administrative Agent for the account of such
Bank for the benefit of the Administrative Agent to satisfy such Bank’s obligations to it under
such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such
amounts in a segregated account as cash collateral for, and application to, any future funding
obligations of such Bank under any such Section, in the case of each of clauses (i) and (ii) above,
in any order as determined by the Administrative Agent in its discretion.
SECTION 2.14 Funding Losses. If the Company makes any payment of principal
with respect to any Euro-Dollar Term Loan (pursuant to Article VI or VIII or otherwise), or
converts any Euro-Dollar Term Loan, on any day other than the last day of the Interest Period
applicable thereto, or the end of an applicable period fixed pursuant to Section 2.09(c), or if the
Company fails to borrow, convert, continue or prepay any Euro-Dollar Term Loans after notice
has been given to any Bank in accordance with Section 2.05(a), 2.05(b) or 2.12(b), as applicable,
the Company shall reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective participant in the related Term Loan),
including (without limitation) any loss incurred in obtaining, liquidating or employing deposits
from third parties, but excluding loss of margin for the period after any such payment or failure
to borrow, provided that such Bank shall have delivered to the Company a certificate as to the
amount of such loss or expense, which certificate shall be conclusive in the absence of manifest
error.
SECTION 2.15 Computation of Interest and Fees. Interest based on the Base Rate
(including the Base Rate determined by reference to the LIBO 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
25
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 2.16 [Reserved].
SECTION 2.17 Defaulting Banks. Notwithstanding any provision of this
Agreement to the contrary, if any Bank becomes a Defaulting Bank, then the following
provisions shall apply for so long as such Bank is a Defaulting Bank:
(a) Commitment Fees shall cease to accrue on the Commitment of such
Defaulting Bank pursuant to Section 2.10(a);
(b) the Commitment and the outstanding principal amount of Term Loans
held by such Defaulting Bank shall not be included in determining whether the Required Banks
have taken or may take any action hereunder (including any consent to any amendment, waiver
or other modification pursuant to Section 10.05); provided that this clause (b) shall not apply to
the vote of a Defaulting Bank in the case of an amendment, waiver or other modification
requiring the consent of such Bank or each Bank affected thereby;
(c) the Administrative Agent may, in its discretion, apply or hold payments
for the account of such Defaulting Bank as set forth in Section 2.13(e);
(d) [Reserved]; and
(e) the Company may, upon notice to such Defaulting Bank and the
Administrative Agent, require such Defaulting Bank, at the expense of such Defaulting Bank, to
assign, without recourse (in accordance with and subject to the restrictions contained in Section
10.06), all its interests, rights and obligations under this Agreement by such Defaulting Bank to
any Person that shall assume such obligations (which Assignee may be another Bank, if it accepts
such assignment) with (and subject to) the consent of the Administrative Agent (which consent
shall not unreasonably be withheld).
ARTICLE III
CONDITIONS
SECTION 3.01 Each Credit Extension.
The obligation of each Bank to make each installment of the Term Loan during
the Availability Period is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as required
by Section 2.05(a);
(b) the fact that, immediately before and after such installment of the Term
Loan is borrowed, no Default shall have occurred and be continuing;
26
(c) the fact that the representations and warranties of the Company contained
in this Agreement shall be true on and as of the date such installment of the Term Loan is
borrowed (or, if any such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date);
(d) Intermediate Co. shall own all of the Capital Stock of Brighthouse Life
Insurance Company (formerly known as MetLife Insurance Company USA), Brighthouse
Securities, LLC, Brighthouse Services, LLC, Brighthouse Investment Advisers, LLC (formerly
known as MetLife Advisers, LLC), Brighthouse Life Insurance Company of NY (formerly
known as First MetLife Investors Insurance Company), New England Life Insurance Company
and each other Insurance Subsidiary to be acquired by the Company and Intermediate Co.
pursuant to the Restructuring Transaction, and the Administrative Agent shall have received
evidence thereof in form and substance satisfactory to it;
(e) Either (i) the Company shall own all of the voting common Capital Stock
of Intermediate Co. and the other elements of the Restructuring Transaction shall have been
consummated, on terms and conditions reasonably satisfactory to the Administrative Agent, and
the Restructuring Effective Date shall have occurred, and the Administrative Agent shall have
received evidence thereof in form and substance satisfactory to it or (ii) the Administrative Agent
shall have received (x) the Intermediate Co. Guaranty executed and delivered by Intermediate
Co., (y) such documents and certificates as the Administrative Agent may reasonably request
relating to the organization, existence and good standing of the Guarantor, the authorization of
the transactions contemplated hereby and any other legal matters relating to each of the
Guarantor, this Agreement or the transaction contemplated hereby, all in form and substance
reasonably satisfactory to the Administrative Agent, including a certified copy of the resolutions
of the Board of Directors of the Company, in form and substance reasonably satisfactory to the
Administrative Agent, authorizing the execution, delivery and performance of the Intermediate
Co. Guaranty and other Credit Documents and (z) an opinion of internal and external counsel to
the Guarantor addressed to it and the Banks, covering such matters relating to the Guarantor, the
Intermediate Co. Guaranty and the transactions contemplated thereby as the Administrative
Agent shall reasonably request;
(f) receipt by the Administrative Agent of evidence as to payment of all fees
or other amounts required to be paid in connection with the borrowing of such installment of the
Term Loan, including, without limitation, amounts set forth in the Fee Letter; and
(g) prior to the day after the Spin-Off Effective Date, after giving effect to the
borrowing of such installment of the Term Loan, the aggregate principal amount outstanding of
the Term Loan shall not exceed $500,000,000.
Each Notice of Borrowing submitted by the Company requesting a Committed Borrowing shall
be deemed to be a representation and warranty by the Company on the date of such Term Loan
that the conditions specified in Section 3.01 have been satisfied.
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 10.05):
27
(a) receipt by the Administrative Agent of counterparts of this Agreement and
the Fee Letter signed by each of the Persons listed on the signature pages hereto or thereto (or, in
the case of any Bank as to which an executed counterpart shall not have been received, receipt by
the Administrative Agent in form satisfactory to it of telecopy or other written confirmation from
such Bank of execution and delivery of a counterpart hereof by such Bank);
(b) receipt by the Administrative Agent of an opinion of internal and external
counsel to the Company addressed to it and the Banks and dated the Effective Date, covering
such matters relating to the Company, this Agreement or the transactions contemplated hereby as
the Administrative Agent shall reasonably request. The Company hereby requests such counsel
to deliver such opinions;
(c) receipt by the Administrative Agent of a certificate, dated the Effective
Date and signed by a Financial Officer of the Company, certifying: (i) (x) that the representations
and warranties contained in this Agreement shall be true on and as of such date and (y) no
Default or Event of Default shall have occurred and be continuing, (ii) as to clause (i) of this
Section 3.02, (iii) the ratings by Moody’s and S&P, respectively, applicable on the Effective
Date to the Index Debt and (iv) a calculation of Adjusted Consolidated Net Worth on the
Effective Date;
(d) receipt by the Administrative Agent of such documents and certificates as
the Administrative Agent may reasonably request relating to the organization, existence and
good standing of the Company, the authorization of the transactions contemplated hereby and
any other legal matters relating to each of the Company, this Agreement or the transaction
contemplated hereby, all in form and substance reasonably satisfactory to the Administrative
Agent, including a certified copy of the resolutions of the Board of Directors of the Company, in
form and substance reasonably satisfactory to the Administrative Agent, authorizing the
execution, delivery and performance of this Agreement and other Credit Documents;
(e) receipt by the Administrative Agent of all documents, and instruments as
it may reasonably request relating to the existence of the Company (including information
required to comply with “know your customer” or similar identification requirements of any
Bank), the corporate authority for and the validity and enforceability of this Agreement and the
other Credit Documents, and any other matters related hereto, all in form and substance
reasonably satisfactory to the Administrative Agent;
(f) receipt by the Administrative Agent 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 Administrative Agent required to be paid as of the Effective Date and invoiced at
least two (2) Business Days prior to the Effective Date (directly to such counsel if requested by
the Administrative Agent)) in connection with this Agreement, on or before the Effective Date;
(g) evidence that the Existing Credit Agreement has been or is, concurrently
with the Effective Date, being terminated and the “Commitments” thereunder have been, or will,
concurrently with the Effective Date be, terminated;
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(h) the Administrative Agent shall be reasonably satisfied with the proposed
terms and conditions of the Restructuring Transaction and the Spin-Off Transaction with respect
to the Company and its Subsidiaries and the transactions contemplated thereby;
(i) except as disclosed on the Specified Form 10, there shall not have
occurred a material adverse change since December 31, 2016 in the business, assets, property or
financial condition of the Company and its Consolidated Subsidiaries, taken as a whole; and
(j) receipt by the Administrative Agent of counterparts of a Note signed by
the Company in favor of each Bank requesting a Note.
The Administrative Agent shall promptly notify the Company and the Banks of the Effective
Date, and such notice shall be conclusive and binding on all parties hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
On (i) the Effective Date, Spin-Off Effective Date and each other date as required by the
Credit Documents, the Company and (ii) the date the Intermediate Co. Guaranty is executed and
each other date as required by the Credit Documents during the Guaranty Period (including the
Spin-Off Effective Date if it occurs during the Guaranty Period), the Guarantor (other than with
respect to Sections 4.04(a) and (b), 4.12 and 4.16, and with (x) references to the Company (and
its Subsidiaries, as applicable) in this Article IV, or in any defined term used herein, being
deemed references to the Guarantor (and its Subsidiaries, as applicable), (y) references to the
“Material Subsidiaries” being deemed references to entities identified in clauses (b), (c) and (d)
thereof (determined using Company financial statements) and (z) references to this Agreement in
Section 4.02, 4.03, 4.05, 4.10 and 4.14 being deemed references to the Intermediate Co.
Guaranty), in each case, represent and warrant that:
SECTION 4.01 Corporate Existence and Power. The Company (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 the Company of this Agreement and the other Credit
Documents to which it is a party are within the Company’s corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect of, or filing with,
any governmental body, agency or official and do not contravene, or constitute a default under,
any provision of applicable law or regulation or of the articles of incorporation or by-laws of the
Company or of any material agreement, judgment, injunction, order, decree or other instrument
29
binding upon the Company or any of its Material Subsidiaries or result in the creation or
imposition of any Lien on any asset of the Company or any of its Material Subsidiaries.
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 the Company, 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 combined balance sheets of the Company and its Consolidated
Subsidiaries, and the related combined statements of income, cash flows and shareholders’ net
investment for the fiscal year then ended, reported on by Deloitte & Touche LLP and set forth in
the Company’s Specified Form 10, a copy of which has been delivered to the Administrative
Agent on behalf of each of the Banks, fairly present, in conformity with generally accepted
accounting principles, the combined financial position of the Company and its Consolidated
Subsidiaries as of such date and their combined results of operations and changes in financial
position for the period covered by such financial statements.
(b) The unaudited combined balance sheets of the Company and its
Consolidated Subsidiaries as of March 31, 2017 and the related unaudited combined statements
of income, cash flows and shareholders’ net investment for the period then ended, set forth in the
Company’s Specified Form 10, a copy of which has been delivered to the Administrative Agent
on behalf of each of the Banks, 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, the combined financial position of the Company 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 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,
2016 has been delivered to the Administrative Agent on behalf of each of the Banks and fairly
presents, in accordance with statutory accounting principles, the information contained therein.
(d) A copy of a duly completed and signed quarterly Statutory Statement or
other similar report of or for each Insurance Subsidiary that is a Material Subsidiary 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 quarter ended March 31,
2017 has been delivered to the Administrative Agent on behalf of each of the Banks and fairly
presents, in accordance with statutory accounting principles, the information contained therein.
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(e) Except as disclosed in the Specified Form 10, since December 31, 2016,
there has been no material adverse change in the business, assets, property or financial condition
of the Company and its Consolidated Subsidiaries, considered as a whole.
SECTION 4.05 Litigation. There is no action, suit or proceeding pending against,
or to the knowledge of the Company threatened against, the Company or any of its 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 Company has reasonably concluded that its 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 Company) or (iii) incurred any liability under
Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA. As of the Effective Date, the Company is not and will not be (a) an “employee benefit
plan,” as defined in Section 3(3) of ERISA, that is subject to Part 4 of Subtitle B of Title I of
ERISA; (b) a plan or account described in Section 4975(e)(1) of the Code to which Section 4975
of the Code applies; (c) an entity whose underlying assets are deemed to include “plan assets”
that are subject to Title I of ERISA or Section 4975 of the Code pursuant to U.S. Department of
Labor Regulation 29 C.F.R Section 2510.3-101, as modified by Section 3(42) of ERISA; or (d) a
“governmental plan,” within the meaning of Section 3(32) of ERISA, that is subject to any law,
rule or restriction that is substantively similar or of similar effect to Section 406 of ERISA or
Section 4975 of the Code.
SECTION 4.07 Taxes. The Company 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 Company 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, and except in each case to the
extent that the failure to do so would not reasonably be expected to have a Material Adverse
Effect. The charges, accruals and reserves on the books of the Company and its Subsidiaries in
respect of taxes are, in the opinion of the Company, adequate.
SECTION 4.08 Subsidiaries. Each of the Company’s Material Subsidiaries (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
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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 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. The Company is not an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
SECTION 4.10 Obligations to be Pari Passu. The Company’s obligations 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 the Company, 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 the
Company or any Material Subsidiary is a party or by which either the Company 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. Set forth as Schedule II hereto is a true,
correct and complete list of each Material Subsidiary as of the date hereof.
SECTION 4.13 [Reserved].
SECTION 4.14 Full Disclosure. None of the reports, financial statements,
certificates or other information furnished by or on the behalf of the Company to the
Administrative Agent or any Bank 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, with respect to projected or
pro forma financial information, the Company 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).
SECTION 4.15 [Reserved].
SECTION 4.16 Hybrid Instruments. Set forth as Schedule III hereto is a true,
correct and complete list of each Hybrid Instrument of the Company 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.
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SECTION 4.17 Sanctioned Persons; Anti-Corruption Laws; Patriot Act. None of
the Company or any of its Subsidiaries or, to the knowledge of the Company, any of their
respective directors, officers, employees, agents or Affiliates is subject to any sanctions or
economic embargoes administered or enforced by the U.S. Department of State or the Office of
Foreign Asset Control of the U.S. Department of Treasury) (collectively, “Sanctions”, and the
associated laws, rules, regulations and orders, collectively, “Sanctions Laws”), except to the
extent that being subject to such Sanctions would not reasonably be expected to have a Material
Adverse Effect or reasonably be expected to result in any Bank violating any Sanctions Laws.
Each of the Company and its Subsidiaries and their respective directors, officers and, to the
knowledge of the Company, employees, agents and Affiliates 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, “Anti-Corruption Laws”) and (iii) 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 any Bank violating any such Sanctions Laws, Anti-Corruption Laws or
Anti-Money Laundering Laws. No part of the proceeds of the Term Loan will be used by the
Company, directly or 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 in violation of any Sanctions Law 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, except in each case to the extent
that such use would not reasonably be expected to have a Material Adverse Effect or reasonably
be expected to result in any Bank violating any Sanctions Laws, Anti-Corruption Laws or Anti-
Money Laundering Laws.
SECTION 4.18 EEA Financial Institutions. The Company is not an EEA Financial
Institution.
ARTICLE V
COVENANTS
Until all Commitments have expired or been terminated and the principal of and interest
on the Term Loan and all fees payable hereunder shall have been paid in full, (i) the Company
(other than with respect to Section 5.14) and (ii) during the Guaranty Period, the Guarantor
(other than with respect to Sections 5.01 (except clauses (c) through (f) thereof), 5.07 and 5.10,
and with (x) references to the Company (and its Subsidiaries, as applicable) in this Article V
(other than Section 5.14), or in any defined term used herein, being deemed references to the
Guarantor (and its Subsidiaries, as applicable), (y) references to the “Material Subsidiaries”
being deemed references to entities identified in clause (b), (c) and (d) thereof (determined using
Company financial statements) and (z) references in Section 5.11 to this Agreement being
deemed references to the Intermediate Co. Guaranty), in each case, agree:
33
SECTION 5.01 Information.
The Company will deliver to each of the Banks:
(a) within 90 days after the end of each fiscal year of the Company, the
consolidated balance sheet of the Company 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 Deloitte & Touche
LLP or other independent public accountants of nationally recognized standing;
(b) within 45 days after the end of each of the first three quarters of each
fiscal year of the Company (and with respect to the fiscal quarter ending June 30, 2017, by
August 21, 2017), the consolidated balance sheet of the Company and its Consolidated
Subsidiaries as of the end of such quarter and the related consolidated statements of income, cash
flows and shareholders’ equity for such quarter and for the portion of the Company’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 Company’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 Company
and its Consolidated Subsidiaries delivered to the Banks (except for changes concurred in by the
Company’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
Company (i) setting forth in reasonable detail the calculations required to establish whether the
Company was in compliance with the requirements of Sections 5.07 and 5.12 (and 5.14, if
applicable) on the date of such financial statements and, with respect to the first fiscal quarter
ending after the Spin-Off Effective Date, including a detailed calculation and explanation of the
Company’s determination of actual Adjusted Consolidated Net Worth, in form and substance
satisfactory to the Agent and Lenders, (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 Company 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 Company 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 120 days after the end of each fiscal year of each Insurance
Subsidiary, a copy of a duly completed and signed annual Statutory Statement (or any successor
form thereto) required to be filed by such Insurance Subsidiary that is a Material Subsidiary with
the governmental body, agency or official which regulates insurance companies in the
34
jurisdiction in which such Insurance Subsidiary is domiciled, in the form submitted to such
governmental body, agency or official;
(e) within 60 days after the end of each of the first three fiscal quarters of
each Insurance Subsidiary, a copy of a duly completed and signed quarterly Statutory Statement
(or any successor form thereto) required to be filed by such Insurance Subsidiary that is a
Material Subsidiary 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;
(f) forthwith upon learning of the occurrence of any Default, a certificate of a
Financial Officer of the Company setting forth the details thereof and the action which the
Company is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the Company
generally, if and only to the extent not duplicative of information otherwise provided pursuant to
clause (h) below, copies of all financial statements, reports and proxy statements so mailed;
(h) 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) or amendments to Specified Form 10
which the Company shall have filed with the SEC;
(i) if and when, and only if the liability for the Company and its Subsidiaries
from the applicable event would reasonably be expected to exceed $75,000,000, any member of
the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event”
(as defined in Section 4043 of ERISA), with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a copy of the notice
of such reportable event given or required to be given to the PBGC; (ii) receives notice of
complete or partial withdrawal liability under Title IV of ERISA or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate,
impose liability (other than for premiums under Section 4007 of ERISA) in respect of, or appoint
a trustee to administer, any Plan, a copy of such notice; (iv) applies for a waiver of the minimum
funding standard under Section 412 of the Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and other
information filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any required payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes 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, a certificate of a Financial
Officer of the Company setting forth details as to such occurrence and action, if any, which the
Company or applicable member of the ERISA Group is required or proposes to take;
35
(j) 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; and
(k) from time to time such additional information regarding the financial
position or business of the Company or the Guarantor as the Administrative Agent, at the request
of any Bank, may reasonably request.
Documents required to be delivered pursuant to Section 5.01(a), (b), (d), (e), (g) or (h) or
pursuant to Section 4.04(c) may be delivered electronically on the following Internet websites:
(a) the Company’s website at an address to be designated in writing to the Administrative Agent,
(b) with respect to Section 5.01(a), (b), (g), (h) or Section 4.04(c) or (d) 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
Company in a notice to the Administrative Agent and the Banks and that is accessible by the
Banks 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 Company shall deliver paper
copies of such information to any Bank promptly upon the request of such Bank through the
Administrative Agent and (ii) the Company shall have notified the Administrative Agent of the
posting of such documents delivered pursuant to Section 5.01(a), (b), (d), (e), (g) and Section
4.04(c) and (d). The Administrative Agent shall have no obligation to request the delivery of or
to maintain paper copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Company with any such request by a Bank for
delivery, and each Bank shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents.
SECTION 5.02 Payment of Obligations. The Company will pay and discharge,
and 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) the Company 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
Company will continue, and will cause each Material Subsidiary to continue, to engage in
business of the same general type as conducted by the Company and its Material Subsidiaries,
taken as a whole, on the date hereof and will preserve, renew and keep in full force and effect,
and will cause each Material Subsidiary 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
36
and immediately after giving effect thereto no Default has occurred and is continuing, (i) any
Subsidiary may merge with or into the Company, provided that the Company shall be the
surviving entity, (ii) any Material Subsidiary may merge with or into any other Subsidiary,
provided that such Material Subsidiary shall be the surviving entity or, if such Material
Subsidiary is not the surviving entity, the surviving entity shall be deemed to a Material
Subsidiary and (iii) any Material Subsidiary may sell, transfer, lease or otherwise dispose of its
assets to the Company or to another Material Subsidiary.
SECTION 5.04 Maintenance of Property; Insurance.
(a) The Company will keep, and will cause each Material Subsidiary 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 Company will maintain, and will cause each Material Subsidiary to
maintain (either in the name of the Company 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 Company and its Material Subsidiaries; and
the Company will furnish to the Banks, upon request from the Administrative Agent, information
presented in reasonable detail as to the insurance so carried.
SECTION 5.05 Compliance with Laws. The Company 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 where the
necessity of compliance therewith is contested in good faith by appropriate proceedings, except
where such non-compliance therewith would not reasonably be expected to have a Material
Adverse Effect (or, in the case of the laws, rules, regulations and orders referred to in Section
4.17, reasonably be expected to result in any Bank violating such laws, rules, regulations or
orders).
SECTION 5.06 Inspection of Property, Books and Records. The Company will
keep, and will cause each Material Subsidiary 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
10.11, will permit, and will cause each Material Subsidiary to permit, representatives of any
Bank to visit and inspect any of their 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 and as often
as may reasonably be desired; provided that such visits, inspections, examinations and/or
discussions shall be reasonably related to such Bank’s rights and obligations hereunder; and
provided, further, that neither the Company nor any of its Subsidiaries shall be required to
37
disclose any information subject to attorney-client privilege to the extent disclosure thereof
would impair such privilege.
SECTION 5.07 Financial Covenants with respect to the Company.
(a) Minimum Adjusted Consolidated Net Worth. From and after the earlier of
(i) the initial extension of credit under this Agreement or (ii) the Spin-Off Transaction Effective
Date, the Company will not at any time 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 (A) the greater
of (x) $8,100,000,000 and (y) 72% of the actual Adjusted Consolidated Net Worth of the
Company (determined as of the end of the first fiscal quarter ending after the Spin-Off Effective
Date) plus (B) 50% of the aggregate amount of (x) Equity Issuances by the Company and its
Subsidiaries after the end of the first fiscal quarter ending after the Spin-Off Effective Date and
(y) the Hybrid Instrument Amount with respect to Hybrid Instruments issued after the end of the
first fiscal quarter ending after the Spin-Off Effective Date.
(b) Total Indebtedness to Total Capitalization Ratio. From and after the
earlier of (i) the initial extension of credit under this Agreement or (ii) the Spin-Off Transaction
Effective Date, the Company will not at any time permit the ratio of (a) Consolidated Total
Indebtedness to (b) Consolidated Total Capitalization to exceed 0.35 to 1.00, calculated as of the
last day of each fiscal quarter.
With respect to all testing periods prior to the end of the first fiscal quarter after
the Spin-Off Effective Date, Adjusted Consolidated Net Worth, Consolidated Total Indebtedness
and Consolidated Total Capitalization shall be calculated as of the last day of the most recently
ended fiscal quarter for which financial statements are available, giving pro forma effect to the
Restructuring Transaction and the payment of the dividend and the incurrence of Debt
contemplated in connection with the Spin-Off Transaction.
SECTION 5.08 Negative Pledge. The Company 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 redundant reserve insurance
liabilities of the Company or any other 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 and Sales of Assets. The Company will
not (a) consolidate or merge with or into any other Person or (b) sell, lease or otherwise transfer,
directly or indirectly, all or substantially all of the assets of the Company and its Subsidiaries,
taken as a whole, to any other Person; provided that the Company may merge with another
Person if (i) the Company is the corporation surviving such merger and (ii) immediately after
giving effect to such merger, no Default shall have occurred and be continuing.
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SECTION 5.10 Use of Credit. The proceeds of the Term Loan will be used for the
Company’s general corporate purposes, including in connection with the Spin-Off Transaction.
No proceeds of the Term Loan will be used, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any “margin stock” within the meaning
of Regulations T, U and X.
SECTION 5.11 Obligations to be Pari Passu. The Company’s obligations 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 Company, with the exception of those obligations that are
mandatorily preferred by law and not by contract.
SECTION 5.12 Certain Debt. The Company will not at any time permit the sum of
(i) Non-Operating Indebtedness of the Company that is secured by a Lien on any property or
assets of the Company and its Subsidiaries and (ii) Non-Operating Indebtedness of the
Subsidiaries of the Company to exceed $150,000,000, except:
(a) Debt of any Subsidiary of the Company owing to the Company or another
Subsidiary of the Company (but including any Debt owing to any other Affiliate of the
Company);
(b) Debt consisting of surplus notes issued by Subsidiaries of the Company
that are operating Insurance Subsidiaries in an amount not to exceed $1,000,000,000; and
(c) Disqualified Capital Stock issued by (x) Intermediate Co. in connection
with the Restructuring Transaction in an aggregate principal amount not to exceed $75,000,000
and (y) Brighthouse Reinsurance in connection with the Restructuring Transaction in an
aggregate principal amount not to exceed $15,000,000.
SECTION 5.13 Intermediate Co. Guaranty. The Intermediate Co. Guaranty shall
be in effect at all times during the Guaranty Period.
SECTION 5.14 Financial Covenants with respect to the Guarantor. During the
Guaranty Period:
(a) Minimum Adjusted Consolidated Net Worth. From and after the initial
extension of credit under this Agreement, the Guarantor will not at any time permit its Adjusted
Consolidated Net Worth (with references to Company therein being deemed references to the
Guarantor), calculated as of the end of each fiscal quarter, to be less than an amount equal to the
sum of (a) the greater of (x) $8,100,000,000 and (y) 72% of the actual Adjusted Consolidated
Net Worth of the Guarantor (determined as of the end of the first fiscal quarter ending after the
Spin-Off Effective Date) plus (b) 50% of the aggregate amount of (x) Equity Issuances by the
Guarantor and its Subsidiaries after the end of the first fiscal quarter ending after the Spin-Off
Effective Date and (y) the Hybrid Instrument Amount (with references to Company therein being
deemed references to the Guarantor) with respect to Hybrid Instruments (with references to
Company therein being deemed references to the Guarantor) issued after the end of the first
fiscal quarter ending after the Spin-Off Effective Date; or
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(b) Total Indebtedness to Total Capitalization Ratio. From and after the initial
extension of credit under this Agreement, the Guarantor will not at any time permit the ratio of
(a) Consolidated Total Indebtedness (with references to Company therein being deemed
references to the Guarantor) to (b) Consolidated Total Capitalization (with references to
Company therein being deemed references to the Guarantor) to exceed 0.35 to 1.00.
With respect to all testing periods prior to the end of the first fiscal quarter after
the Spin-Off Effective Date, Adjusted Consolidated Net Worth, Consolidated Total Indebtedness
and Consolidated Total Capitalization shall be tested as of the end of the most recently ended
fiscal quarter for which financial statements are available, giving pro forma effect to the
Restructuring Transaction and the payment of the dividend and the incurrence of Debt
contemplated in connection with the Spin-Off Transaction. The calculation of the covenants in
this Section 5.14 shall be based on financial information available with respect to the Company
(with such adjustments to reflect such information for the Guarantor as shall be reasonably
agreed among the Company and the Administrative Agent) and, prior to the Restructuring
Effective Date, shall include pro forma adjustments to (1) include (without duplication) Debt of
the Company and its subsidiaries in the calculation of Consolidated Total Indebtedness with
respect to the Guarantor and (2) eliminate any intercompany Debt that would be eliminated in
consolidation if the Company owned the Guarantor in the calculation of Consolidated Total
Indebtedness with respect to the Guarantor.
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default. If one or more of the following events (“Events
of Default”) shall have occurred and be continuing:
(a) (i) the Company or Guarantor shall fail to pay when due any principal of
the Term Loan or (ii) the Company or Guarantor shall fail to pay when due any interest on the
Term Loan or any fees or any other amounts payable hereunder and such failure under this
clause (ii) shall continue for four Business Days;
(b) the Company or Guarantor shall fail to observe or perform any covenant
of the Company or the Guarantor, respectively, contained in Section 5.03(a) or Sections 5.07
through 5.14 inclusive;
(c) the Company or Guarantor shall fail to observe or perform any covenant
or agreement of the Company or the Guarantor, respectively, 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 Company by the Administrative Agent at the request
of any Bank;
(d) any representation, warranty, certification or statement made by the
Company or the Guarantor 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 in any material respect when made (or deemed made);
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(e) the Company, the Guarantor or any Subsidiary shall fail to make any
payment in respect of any Debt (other than Loans or other extensions of credit hereunder) having
a principal amount then outstanding of not less than $150,000,000 when due and such failure
shall continue beyond any applicable grace period or the Company, the Guarantor or any
Subsidiary shall fail to make any payment in an amount at least equal to $150,000,000 in respect
of any Derivative Financial Product when due and such failure shall continue beyond any
applicable grace period;
(f) any event or condition shall occur which results in the acceleration of the
maturity of any Debt (other than Term Loans or other extensions of credit hereunder) having a
principal or face amount then outstanding of not less than $150,000,000 of the Company, the
Guarantor or any Subsidiary, or any 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 net obligation of
not less than such amount, or enables (or, with the giving of notice or lapse of time or both,
would enable) the holder (or counterparty) of such Debt (or Derivative Financial Product) or any
Person acting on such holder’s behalf to accelerate the maturity (or declare an early termination
event) thereof;
(g) the Company, the Guarantor 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 the
Company, the Guarantor 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 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 the Company 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 the Company or any Material Subsidiary or of the assets or any
substantial part thereof of the Company 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 in excess of $150,000,000: (i) any member of the ERISA Group shall fail
41
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 $250,000,000
(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 the Company, the Guarantor or any
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) the Intermediate Co. Guaranty shall for any reason cease to be in full force
and effect during the Guaranty Period; or the Company, the Guarantor or any other Person
contests in any manner the validity or enforceability of any provision of the Intermediate Co.
Guaranty; or the Guarantor denies it has any further liability or obligation under any provision of
the Intermediate Co. Guaranty, or purports to revoke, terminate or rescind any provision thereof
at any time prior to the release thereof by the Administrative Agent pursuant to Section 7.12
hereof;
then, and in every such event, and at any time thereafter during the continuance
of such event, the Administrative Agent shall, if requested by the Required Banks, by notice to
the Company take any or all of the following actions, at the same or different times: (i)
terminate the Commitments and they shall thereupon terminate and (ii) declare the Term Loans
then outstanding to be due and payable in whole (or in part, in which case any principal not so
declared to be due and payable may thereafter be declared to be due and payable), and
thereupon the principal of the Term Loans so declared to be due and payable, together with
accrued interest thereon and all fees and other obligations of the Company and 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 Company and the
Guarantor; provided that, in the case of any of the Events of Default specified in clause (g) or
(h) above, with respect to the Company or the Guarantor, without any notice to the Company or
Guarantor or any other act by the Administrative Agent or the Banks, the Commitments shall
thereupon terminate and the principal of the Term Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Company accrued hereunder,
shall automatically become due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby waived by the Company and the Guarantor. For the avoidance
42
of doubt, no Event of Default will apply to the Guarantor unless the Guaranty Period is in
effect.
SECTION 6.02 Notice of Default. The Administrative Agent shall give notice to
the Company under Section 6.01(c) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment and Authorization. Each Bank irrevocably appoints
and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Credit Documents as are delegated to the
Administrative Agent by the terms hereof or thereof, together with all such powers as are
reasonably incidental thereto.
SECTION 7.02 Agent’s Fee. The Company shall pay to the Administrative Agent
for its own account fees in the amounts and at the times previously agreed upon between the
Company and the Administrative Agent.
SECTION 7.03 Agent and Affiliates. The Person serving as the Administrative
Agent hereunder shall have the same rights and powers under this Agreement as any other Bank
and may exercise or refrain from exercising the same as though it were not the Administrative
Agent. Such Person and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of business with the Company or any Subsidiary or Affiliate of any thereof as
if it were not the Administrative Agent hereunder.
SECTION 7.04 Action by Agent. The obligations of the Administrative Agent
hereunder are only those expressly set forth herein. The Administrative Agent shall not have any
duty to take any discretionary action permitted to be taken by it pursuant to the provisions of this
Agreement, unless it shall be requested in writing to do so by the Required Banks. Without
limiting the generality of the foregoing, the Administrative Agent shall not be required to take
any action with respect to any Default, except as expressly provided in Article VI. The
Administrative Agent shall have no duty to disclose to the Banks information that is not required
to be furnished by the Company to the Administrative Agent at such time, but is voluntarily
furnished by the Company to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).
SECTION 7.05 Consultation with Experts. The Administrative Agent may consult
with legal counsel (who may be counsel for the Company), independent public accountants and
other experts selected by it and shall not be liable for any action taken or omitted to be taken by
it in good faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.06 Liability of Agent. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any Bank for any action taken or not
taken by it in connection herewith (i) with the consent or at the request of the Required Banks or
(ii) in the absence of its own gross negligence or willful misconduct as determined by a court of
43
competent jurisdiction. The Administrative Agent shall be deemed not to have knowledge of
any Default unless and until written notice thereof is given to the Administrative Agent by the
Company or a Bank. Neither the Administrative Agent nor any of its directors, officers, agents
or employees shall be responsible to any Bank for or have any duty to any Bank to ascertain,
inquire into or verify (i) any statement, warranty or representation made in connection with this
Agreement or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of the Company; (iii) the satisfaction of any condition specified in
Article III, except receipt of items required to be delivered to the Administrative Agent; (iv) the
validity, effectiveness or genuineness of this Agreement, any other Credit Document or any other
instrument or writing furnished in connection herewith; (v) the existence or possible existence of
any Default; (vi) the financial condition of the Company or any of its Subsidiaries; or (vii) the
contents of any certificate, report or other document delivered hereunder or in connection
herewith. The Administrative Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, statement, or other writing believed by it in good faith to be genuine
or to be signed by the proper party or parties.
SECTION 7.07 Indemnification. Each Bank shall, ratably in accordance with its
Commitment (determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought), indemnify the Administrative Agent (to the extent not reimbursed by the
Company) against any cost, expense (including counsel fees and disbursements), claim, demand,
action, loss or liability (except such as result from the Administrative Agent’s gross negligence
or willful misconduct as determined by a court of competent jurisdiction) that the Administrative
Agent may suffer or incur in connection with this Agreement or any action taken or omitted by
the Administrative Agent hereunder. The Administrative Agent shall be fully justified in failing
or refusing to take any action hereunder unless it shall first be indemnified to its satisfaction by
the Banks pro rata against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.
SECTION 7.08 Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it has deemed appropriate, made its own credit analysis
and decision to enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Bank, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking any action under this Agreement.
SECTION 7.09 Successor Agent. The Administrative Agent may resign at any
time by giving written notice thereof to the Banks and the Company. Upon any such resignation,
the Required Banks shall have the right to appoint from among the Banks a successor
Administrative Agent, which successor Administrative Agent shall be satisfactory to the
Company, provided that no Default is continuing. If no successor Administrative Agent shall
have been so appointed by the Required Banks, and shall have accepted such appointment,
within 30 days after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor Administrative
Agent, which shall be a commercial bank organized or licensed under the laws of the United
States of America or of any State thereof and having a combined capital and surplus of at least
$100,000,000 and (unless a Default has occurred and is continuing) shall otherwise be subject to
44
the consent of the Company, which consent shall not be unreasonably withheld. Upon the
acceptance of its appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become vested with
all the rights and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent’s resignation hereunder as Administrative Agent, the provisions of this
Article shall inure to its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent.
SECTION 7.10 Delegation to Affiliates. The Company and the Banks agree that
the Administrative Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate’s directors, officers, agents and employees)
which performs duties in connection with this Agreement shall be entitled to the same benefits of
the indemnification, waiver and other protective provisions to which the Administrative Agent is
entitled under Articles VII and X.
SECTION 7.11 Lead Arrangers and Syndication Agent. Notwithstanding anything
herein to the contrary, the Lead Arrangers and Syndication Agent listed on the cover page of this
Agreement shall not have any right, power, obligation, liability, responsibility or duty under this
Agreement in its capacity as such, except in its respective capacity, if any, as a Bank or
Administrative Agent.
SECTION 7.12 Release of Intermediate Co. Guaranty. Provided that (i) no Default
or Event of Default has occurred and is continuing and (ii) the Company shall own all of the
voting common Capital Stock of Intermediate Co. and the other elements of the Restructuring
Transaction shall have been consummated, in form and substance reasonably satisfactory to the
Administrative Agent, and the Restructuring Effective Date shall have occurred, the Banks
irrevocably authorize the Administrative Agent, and the Administrative Agent agrees, upon
delivery of a written request, and certification of the satisfaction of the conditions set forth in
clauses (i) and (ii) above, by the Company or Guarantor, to release the Guarantor from its
obligations under the Intermediate Co. Guaranty.
SECTION 7.13 ERISA. Each Bank represents and warrants as of the Effective
Date to the Administrative Agent and its Affiliates, and not, for the avoidance of doubt, for the
benefit of the Company, that such Bank is not and will not be (1) an employee benefit plan
subject to Title I of ERISA, (2) a plan or account subject to Section 4975 of the Code; (3) an
entity deemed to hold “plan assets” of any such plans or accounts for purposes of ERISA or the
Code; or (4) a “governmental plan” within the meaning of ERISA.
45
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair. If on or
prior to the first day of any Interest Period for any Euro-Dollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not exist for
ascertaining the LIBO Rate for such Interest Period, or
(b) the Required Banks advise the Administrative Agent that the LIBO Rate
as determined by the Administrative Agent will not adequately and fairly reflect the cost to such
Banks of funding their Euro-Dollar Term Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Company and the Banks,
whereupon until the Administrative Agent notifies the Company that the circumstances giving
rise to such suspension no longer exist, the obligations of the Banks to make Euro-Dollar Term
Loans shall be suspended. Unless the Company notifies the Administrative Agent at least two
Business Days before the date of any Euro-Dollar Borrowing for which a Notice of Borrowing
has previously been given that it elects not to borrow on such date, such Borrowing shall instead
be made as a Base Rate Borrowing.
SECTION 8.02 Illegality. If, after the date of this Agreement, 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 any Bank (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 make it unlawful or impossible for any Bank (or its Applicable Lending Office) to
make, continue, maintain or fund its Euro-Dollar Term Loans and such Bank shall so notify the
Administrative Agent, the Administrative Agent shall forthwith give notice thereof to the other
Banks and the Company, whereupon until such Bank notifies the Company and the
Administrative Agent that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make Euro-Dollar Term Loans shall be suspended. Before giving any
notice to the Administrative Agent pursuant to this Section, such Bank shall designate a different
Applicable Lending Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of its outstanding
Euro-Dollar Term Loans to maturity and shall so specify in such notice, the Company shall
immediately prepay in full the then outstanding principal amount of each such Euro-Dollar Term
Loan, together with accrued interest thereon. Concurrently with prepaying each such Euro-Dollar
Term Loan, the Company shall borrow Base Rate Term Loans in an equal principal amount from
such Bank (on which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Term Loans of the other Banks), and such Bank shall make such Base Rate Term
Loans.
46
SECTION 8.03 Increased Cost and Reduced Return.
(a) If on or after the date hereof, in the case of any Term Loan or any
obligation to make Term Loans, 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 any Bank (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, but excluding with respect to any Euro-
Dollar Term Loan any such requirement included in an applicable Euro-Dollar Reserve
Percentage), special deposit, compulsory loan, insurance assessment or similar requirement
against assets of, deposits with or for the account of, or credit extended by, any Bank (or its
Applicable Lending Office) or shall impose on any Bank (or its Applicable Lending Office) or
the London interbank market any other condition affecting its Euro-Dollar Term Loans, its Notes
or its obligation to make Euro-Dollar Term Loans and the result of any of the foregoing is to
increase the cost or expense to such Bank (or its Applicable Lending Office) of making,
continuing, converting to or maintaining any Euro-Dollar Term Loan, or to reduce the amount of
any sum received or receivable by such Bank (or its Applicable Lending Office) under this
Agreement or under other Credit Document with respect thereto, by an amount deemed by such
Bank to be material, then, within 15 days after demand by such Bank (with a copy to the
Administrative Agent), the Company shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such increased cost or reduction.
(b) If any Bank 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 such
Bank (or its Parent) as a consequence of such Bank’s obligations hereunder to a level below that
which such Bank (or its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital adequacy) by an amount
deemed by such Bank to be material, then from time to time, within 15 days after demand by
such Bank (with a copy to the Administrative Agent), the Company shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or its Parent) for such reduction.
(c) Each Bank will promptly notify the Company and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle
such Bank to compensation pursuant to this Section. A certificate of any Bank claiming
compensation under this Section and setting forth the additional amount or amounts to be paid to
it hereunder and, in reasonable detail, such Bank’s computation of such amount or amounts, shall
be conclusive in the absence of manifest error. In determining such amount, such Bank may use
any reasonable averaging and attribution methods.
47
(d) Notwithstanding anything herein to the contrary, for purposes of this
Section, (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 Bank 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.
SECTION 8.04 Base Rate Term Loans Substituted for Affected Euro-Dollar Term
Loans. If (i) the obligation of any Bank to make or continue Euro-Dollar Term Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation under Section
8.03(a) or 8.05 and the Company shall, by at least five Business Days’ prior notice to such Bank
through the Administrative Agent, have elected that the provisions of this Section shall apply to
such Bank, then, unless and until such Bank notifies the Company that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Term Loans which would otherwise be made, or continued, by such
Bank as Euro-Dollar Term Loans shall be made instead as, or converted into, Base Rate Term
Loans (on which interest and principal shall be payable contemporaneously with the related
Euro-Dollar Term Loans of the other Banks), and
(b) after each of its Euro-Dollar Term Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Term Loans shall be
applied to repay its Base Rate Term Loans instead.
SECTION 8.05 Taxes.
(a) For purposes of this Section, 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 that is 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.
“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 Company
pursuant to this Agreement or any other Credit Document, and all liabilities with respect thereto,
but excluding, in the case of each Bank and the Administrative Agent, (i) taxes imposed on its
net income, and franchise, branch profits or similar taxes imposed on it, by a jurisdiction under
the laws of which such Bank or the Administrative Agent (as the case may be) is organized or in
which its principal executive office is located or, in the case of each Bank, in which its
Applicable Lending Office is located, (ii) taxes imposed by reason of any present or former
connection between such recipient and the jurisdiction (or any political subdivision thereof)
imposing such taxes, other than solely as a result of the execution and delivery of this
48
Agreement, the making of any Credit Extensions hereunder or the performance of any action
provided for hereunder, (iii) in the case of each Bank, U.S. federal withholding taxes imposed on
amounts payable to or for the account of such Bank with respect to an applicable interest in the
Loan or Credit Agreement pursuant to a law in effect on the date on which such Bank acquires
such interest in the Loan or Credit Agreement or such Bank changes its lending office, except in
each case to the extent that, pursuant to this Section 8.05, amounts with respect to such taxes
were payable either to such Bank’s assignor immediately before such Bank became a party
hereto or to such Bank immediately before it changed its lending office, (iv) taxes attributable to
such recipient’s failure to comply with Section 8.05(d) or Section 8.05(e), and (v) any U.S.
Federal withholding Taxes imposed by FATCA (all such excluded taxes, “Excluded Taxes”). If
the form provided by a Bank pursuant to Section 8.05(d) at the time such Bank 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 Company
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 Company, the Guarantor or the Administrative
Agent.
(b) Any and all payments by any Withholding Agent to or for the account of
any Bank or the Administrative Agent 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, (i) the sum payable by the Company 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) such Bank or the
Administrative Agent (as the case may be) 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 Company or the Guarantor (as the
case may be) shall promptly furnish to the Administrative Agent, at its address referred to in
Section 10.01, the original or a certified copy of a receipt evidencing payment thereof, and, if
such receipt relates to Taxes or Other Taxes in respect of a sum payable to any Bank, the
Administrative Agent shall promptly deliver such original or certified copy to such Bank.
(c) The Company agrees to indemnify each Bank and the Administrative
Agent for the full amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted on amounts payable under this Section), whether or not
correctly or legally imposed, paid by such Bank or the Administrative Agent (as the case may
49
be) and reasonable expenses arising therefrom or with respect thereto. This indemnification shall
be paid within 30 days after such Bank or Agent, as the case may be, makes demand therefor.
(d) On or prior to the date on which a Bank becomes a Bank under this
Agreement, (i) each Bank that is not incorporated under the laws of the United States of America
or a state thereof agrees that it will deliver to each of the Company and the Administrative Agent
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 such Bank is entitled to
receive payments under this Agreement and the Notes without deduction or withholding of any
United States federal income taxes, and (ii) each Bank that is incorporated under the laws of the
United States of America or a state thereof agrees that it will deliver to each of the Company and
the Administrative Agent two duly completed copies of United States Internal Revenue Service
Form W-9. Each Bank which so delivers a Form W-9, W-8BEN, W-8BEN-E, W-8IMY or W-
8ECI (as applicable) further undertakes to deliver to each of the Company and the
Administrative Agent 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 Company or the Administrative Agent,
in each case certifying that such Bank is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United States federal income taxes, unless
such Bank promptly notifies the Company and Administrative Agent in writing of its legal
inability to do so.
(e) If a payment made to a Bank under any Credit Document would be subject
to U.S. federal withholding tax imposed by FATCA if such Bank 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), such Bank shall deliver to the Company and the
Withholding Agent at the time prescribed by law and at such times reasonably requested by the
Withholding Agent or the Company 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 Company sufficient for the Withholding
Agent to comply with its obligations under FATCA and to determine that such Bank 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. Each Bank 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 Company and the
Withholding Agent in writing of its legal inability to do so.
(f) For any period with respect to which a Bank has failed to provide the
Company or the Administrative Agent with the appropriate form as required by Section 8.05(d)
(whether or not such Bank 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), such Bank shall not be entitled to indemnification under Section
8.05(b) or (c) with respect to any withholding of the United States federal income tax resulting
from such failure; provided that if a Bank, 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
50
required hereunder, the Company shall take such steps as such Bank shall reasonably request to
assist such Bank to recover such Taxes.
(g) Each Bank and the Administrative Agent shall, at the request of the
Company, use reasonable efforts (consistent with applicable legal and regulatory restrictions) to
file any certificate or document requested by the Company 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 such Bank or the Administrative Agent (as the case may be) pursuant to this Section
which may thereafter accrue and would not, in the sole judgment of such Bank or the
Administrative Agent, require such Bank or the Administrative Agent to disclose any
confidential or proprietary information or be otherwise disadvantageous to such Bank or the
Administrative Agent. Furthermore, if the Bank or Administrative Agent 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 (including the payment of additional
amounts pursuant to this Section), 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) Each Bank shall severally indemnify the Administrative Agent, within 10
days after demand therefor, for (i) any Indemnified Taxes attributable to such Bank (but only to
the extent that the Company has not already indemnified the Administrative Agent for such
Taxes or Other Taxes and without limiting the obligation of the Company to do so), (ii) any
Taxes attributable to such Bank’s failure to comply with the provisions of Section 10.06 relating
to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such
Bank, in each case, that are payable or paid by the Administrative Agent in connection with any
Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether
or not such Taxes were correctly or legally imposed or asserted by the relevant governmental
authority. A certificate as to the amount of such payment or liability delivered to any Bank by
the Administrative Agent shall be conclusive absent manifest error. Each Bank hereby
authorizes the Administrative Agent to set off and apply any and all amounts at any time owing
to such Bank under any Loan Document or otherwise payable by the Administrative Agent to the
Bank from any other source against any amount due to the Administrative Agent under this
paragraph (h).
(i) Notwithstanding the foregoing, nothing in this Section shall interfere with
the rights of any Bank to conduct its fiscal or tax affairs in such manner as it deems fit.
SECTION 8.06 Regulation D Compensation. For so long as any Bank maintains
reserves against “Eurocurrency liabilities” (or any other category of liabilities which includes
deposits by reference to which the interest rate on Euro-Dollar Term Loans is determined or any
category of extensions of credit or other assets which includes loans by a non-United States
office of such Bank to United States residents), and as a result the cost to such Bank (or its
Applicable Lending Office) of making or maintaining its Euro-Dollar Term Loans is increased,
51
then such Bank may require the Company to pay, contemporaneously with each payment of
interest on the Euro-Dollar Term Loans, additional interest on the related Euro-Dollar Term
Loans of such Bank at a rate per annum up to but not exceeding the excess of (i) (A) the
applicable LIBO Rate divided by (B) one minus the Euro-Dollar Reserve Percentage over (ii) the
applicable LIBO Rate. Any Bank wishing to require payment of such additional interest (x) shall
so notify the Company and the Administrative Agent, in which case such additional interest on
the Euro-Dollar Term Loans of such Bank shall be payable to such Bank at the place indicated in
such notice with respect to each Interest Period commencing at least three Business Days after
the giving of such notice and (y) shall furnish to the Company at least five Business Days prior
to each date on which interest is payable on the Euro-Dollar Term Loans an officer’s certificate
setting forth the amount to which such Bank is then entitled under this Section (which shall be
consistent with such Bank’s good faith estimate of the level at which the related reserves are
maintained by it). Each such certificate shall be accompanied by such information as the
Company may reasonably request as to the computation set forth therein.
SECTION 8.07 Mitigation Obligations; Replacement of Banks.
(a) If any Bank requests compensation under Section 8.03, or if the Company
is required to pay any additional amount to any Bank or any governmental body, agency or
official for the account of any Bank pursuant to Section 8.05, then such Bank shall use
reasonable efforts to designate a different Applicable Lending Office for funding or booking its
Term Loans hereunder or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Bank (with the concurrence of the Company),
such designation or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 8.03 or 8.05, as the case may be, in the future and (ii) would not subject such Bank to
any unreimbursed cost or expense and would not otherwise be disadvantageous to such Bank.
The Company hereby agrees to pay all reasonable costs and expenses incurred by any Bank in
connection with any such designation or assignment.
(b) If (i) any Bank requests compensation under Section 8.03, (ii) the
Company is required to pay any additional amount to any Bank or any governmental body,
agency or official for the account of any Bank pursuant to Section 8.05, or (iii) any Bank is a
Non-Consenting Bank, then the Company may, at its sole expense and effort, upon notice to such
Bank and the Administrative Agent, require such Bank to assign and delegate, without recourse
(in accordance with and subject to the restrictions contained in Section 10.06(c)), all its interests,
rights and obligations under this Agreement to an Assignee that shall assume such obligations
(which Assignee may be another Bank, if a Bank accepts such assignment); provided that (i) the
Company shall have received the prior written consent of the Administrative Agent, which
consent shall not unreasonably be withheld, (ii) such Bank shall have received payment of an
amount equal to the outstanding principal of its Term Loans, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder, from the Assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Company (in the case of all other
amounts), (iii) in the case of any such assignment resulting from a claim for compensation under
Section 8.03 or payments required to be made pursuant to Section 8.05, such assignment will
result in a reduction in such compensation or payments, (iv) in the case of any such assignment
in respect of a Non-Consenting Bank, the applicable Assignee shall have consented to the
applicable amendment, waiver or consent, and (v) such assignment does not conflict with
52
applicable law. A Bank shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Bank or otherwise, the circumstances entitling the
Company to require such assignment and delegation cease to apply.
ARTICLE IX
[RESERVED].
ARTICLE X
MISCELLANEOUS
SECTION 10.01 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including facsimile transmission, or 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 the Company, at the Company’s address or telecopier
number set forth on the Company’s signature page hereof, (b) in the case of the Administrative
Agent, at its address or telecopier number set forth on its respective signature page hereof, (c) in
the case of any Bank, at its address or telecopier number set forth in its Administrative
Questionnaire or (d) in the case of any party, such other address or telecopier number as such
party may hereafter specify for the purpose by notice to the Administrative Agent and the
Company. 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 or (iii) if given by any other means,
when delivered at the relevant address specified by such party pursuant to this Section; provided
that notices to the Administrative Agent under Article II or Article VIII shall not be effective
until received.
Notices and other communications to the Banks hereunder may be delivered or furnished
by electronic communications pursuant to procedures approved by the Administrative Agent;
provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise
agreed by the Administrative Agent and the applicable Bank. The Administrative Agent or the
Company 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 10.02 No Waivers. No failure or delay by the Administrative Agent or
any Bank 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 10.03 Expenses; Indemnification; Non-Liability of Banks.
(a) The Company shall pay (i) all reasonable out-of-pocket costs and expenses
of the Administrative Agent and its Affiliates, including reasonable fees and disbursements of
53
one counsel for the Administrative Agent, in connection with the preparation, due diligence,
administration, syndication and closing of this Agreement, any waiver or consent hereunder or
any amendment hereof or any Default or alleged Default hereunder and (ii) if an Event of
Default occurs, all out-of-pocket expenses incurred by the Administrative Agent and each Bank,
including fees and disbursements of counsel including costs allocated to in-house counsel, in
connection with such Event of Default and collection, bankruptcy, insolvency and other
enforcement proceedings resulting therefrom.
(b) The Company agrees to indemnify the Administrative Agent, each Bank,
their Affiliates and the respective directors, officers, agents, partners, advisors and employees of
the foregoing (each an “Indemnitee”) and hold each Indemnitee harmless from and against any
and all liabilities, losses, damages, costs and expenses of any kind, including, without limitation,
costs of settlement and the reasonable and documented fees and disbursements of one counsel for
the Indemnitees (unless the Indemnitees have conflicting interests and cannot reasonably be
represented by one counsel, in which case such expenses shall include the reasonable and
documented fees and disbursements of no more than such number of counsels as are necessary to
represent such conflicting interests), 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 the Company, its equity
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 Term Loan or the use of proceeds therefrom; 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) its
own gross negligence or willful misconduct, (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 (other than any
claim, litigation, or proceeding against an Indemnitee acting in its capacity as a Lead Arranger,
Administrative Agent or other capacity as an agent) that does not involve an act or omission (or
alleged act or omission) by the Company or any of the Company’s affiliates, in the case of each
of the foregoing clauses (x), (y) and (z), as determined in a final and non-appealable judgment by
a court of competent jurisdiction.
(c) To the extent permitted by applicable law, the Company 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 Term Loan, or the use of the
proceeds thereof.
(d) No Indemnitee shall be liable for any damages arising from the use by
others of any information or other materials obtained through IntraLinks, Syndtrak, ClearPar or
54
other similar information transmission systems in connection with this Agreement or any other
Credit Document.
(e) The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Bank, the termination of the Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
SECTION 10.04 Sharing of Payments. Each Bank agrees that if it shall, by
exercising any right of set-off or counterclaim or otherwise, receive payment of a proportion of
the aggregate amount of principal and interest due with respect to any Term Loan made by it
which is greater than the proportion received by any other Bank in respect of the aggregate
amount of principal and interest due with respect to any Term Loan made by such other Bank,
the Bank receiving such proportionately greater payment shall purchase such participations in the
Term Loans held by the other Banks, as applicable, and such other adjustments shall be made, as
may be required so that all such payments of principal and interest with respect to the Term
Loans made by the Banks shall be shared by the Banks pro rata; provided that (i) nothing in this
Section shall impair the right of any Bank to exercise any right of set-off or counterclaim it may
have and to apply the amount subject to such exercise to the payment of indebtedness of the
Company other than its indebtedness under this Agreement and (ii) the provisions of this Section
shall not be construed to apply to any payment made by the Company pursuant to and in
accordance with the express terms of this Agreement. The Company agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a participation in the Term
Loan, whether or not acquired pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such participation as fully as if such
holder of a participation were a direct creditor of the Company or Guarantor in the amount of
such participation.
SECTION 10.05 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 Company and the Required Banks or by the Administrative Agent (with the consent of the
Required Banks) (and, if the rights or duties of the Administrative Agent, in such capacity, are
affected thereby, by the Administrative Agent); provided, that no such amendment or waiver
shall (i) increase the amount or extend the expiry date of the Commitment of any Bank without
the written consent of such Bank, (ii) reduce the principal amount of any Term Loan, the rate or
amount of interest thereon or any fees payable to any Bank hereunder, without the written
consent of each Bank affected thereby, (iii) postpone the scheduled date of payment of the
principal amount of any Term Loan, or any interest thereon, or any fees payable hereunder, or
waive or excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Bank affected thereby, (iv) change Section
2.13(b) or (c) or Section 10.04 in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Bank affected thereby, (v) change any of
the provisions of this Section or the definition of “Required Banks” or any other provision hereof
specifying the number or percentage of Banks required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the written
consent of each Bank, or (vi) release the Guarantor under the Intermediate Co. Guaranty (other
than as permitted by Section 7.12), without the written consent of each Bank, other than any
Bank that is a Defaulting Bank.
55
SECTION 10.06 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
the Company may not assign or otherwise transfer any of its rights or obligations under this
Agreement, without the prior written consent of each Bank.
(b) Any Bank may at any time grant to one or more banks or other institutions
(each a “Participant”) participating interests in its rights and obligations under this Agreement. In
the event of any such grant by a Bank of a participating interest to a Participant, whether or not
upon notice to the Company and the Administrative Agent, such Bank shall remain solely
responsible for the performance of its obligations hereunder, and the Company and the
Administrative Agent shall continue to deal solely and directly with such Bank in connection
with such Bank’s rights and obligations under this Agreement. Any agreement pursuant to which
any Bank may grant such a participating interest shall provide that such Bank shall retain the sole
right and responsibility to enforce the obligations of the Company 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 such Bank will not
agree to any modification, amendment or waiver of this Agreement described in the proviso of
Section 10.05 without the consent of the Participant. The Company 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). Each Bank that grants a participation shall, acting solely for this purpose as a
non-fiduciary agent of the Company, 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 Term Loans or other obligations under this Agreement (the “Participant
Register”); provided that no Bank shall 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 any Commitment, Term Loan, or other obligations under
any Loan Document) except to the extent that such disclosure is necessary to establish that such
Commitment, Term Loan, or 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 such Bank 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. For the avoidance of doubt, the Administrative
Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a
Participant Register.
(c) Any Bank may at any time assign to one or more banks or other financial
institutions (other than the Company, Affiliates of the Company or a Defaulting Bank, each an
“Assignee”) all, or a proportionate part of all, of its rights and obligations under this Agreement,
and such Assignee shall assume such rights and obligations, pursuant to an Assignment and
Assumption executed by such Assignee and such transferor Bank, with (and subject to) the
consent (which in each case shall not be unreasonably withheld, conditioned or delayed) of each
of the Company and the Administrative Agent; provided that (i) if an Assignee is an Affiliate of
56
any Bank or was a Bank immediately prior to such assignment, no such consent of the Company
shall be required and (ii) if an Assignee was a Bank immediately prior to such assignment, no
such consent of the Administrative Agent shall be required; provided, further, that (x) the
Company shall be deemed to have consented to any such assignment unless it shall object thereto
by written notice to the Administrative Agent within ten Business Days after having received
notice thereof and (y) if an Event of Default occurs and is continuing, no such consent of the
Company shall be required; and provided, further, that any such assignment (other than an
assignment to another Bank or an Affiliate of any Bank or an assignment of the entire remaining
amount of the transferor Bank’s interests in the Term Loan Facility) shall be in an amount that
is at least $5,000,000 unless otherwise agreed by the Company and the Administrative Agent.
Upon execution and delivery of such Assignment and Assumption and payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this Agreement and
shall have all the rights and obligations of a Bank with an undrawn Commitment and principal
amount of the Term Loan owing to it as set forth in such instrument of assumption, and the
transferor Bank shall be released from its obligations hereunder to a corresponding extent, and
no further consent or action by any party shall be required. In connection with any such
assignment, the transferor Bank or Assignee shall pay to the Administrative Agent an
administrative fee for processing such assignment in the amount of $3,500. If the Assignee is not
incorporated under the laws of the United States of America or a state thereof, it shall, prior to
the first date on which interest or fees are payable hereunder for its account, deliver to the
Company and the Administrative Agent certification as to exemption from deduction or
withholding of any United States federal income taxes in accordance with Section 8.05(d).
(d) Any Bank may at any time assign all or any portion of its rights under this
Agreement to any Person to secure obligations of such Bank, 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 transferor Bank from its obligations
hereunder.
(e) No Participant shall be entitled to receive any greater payment under
Section 8.03, 8.05 or 8.06 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made (i) with the Company’s prior written consent, (ii)
by reason of the provisions of Section 8.02 or 8.07 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 10.07 Collateral. Each of the Banks represents to the Administrative
Agent and each of the other Banks that it in good faith is not relying upon any “margin stock” (as
defined in Regulation U) as collateral in the extension or maintenance of the credit provided for
in this Agreement.
SECTION 10.08 New York Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
57
SECTION 10.09 Judicial Proceedings.
(a) Submission to Jurisdiction. The Company 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 arising out of or relating to this Agreement or any other Credit Document or the
transactions contemplated hereby. The Company 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) [Reserved].
(c) Service of Process. The Company hereby consents to process being
served in any suit, action or proceeding of the nature referred to in subsection (a) of this Section
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; 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 the Company at its address specified on the
signature page hereof or to any other address of which the Company shall have given written
notice to the applicable Bank. The Company 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 the Company 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 the Company.
(d) No Limitation on Service or Suit. Nothing in this Section shall affect the
right of the Administrative Agent or any Bank to serve process in any other manner permitted by
law or limit the right of the Administrative Agent or any Bank to bring proceedings against the
Company in the courts of any jurisdiction or jurisdictions.
SECTION 10.10 Counterparts; Integration; Headings. This Agreement may be
signed in any number of counterparts (and by different parties hereto in different counterparts),
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument, and all of which taken together shall constitute a single contract.
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. Except as provided in Section 3.02, this Agreement shall become effective
when it shall have been executed by the Administrative Agent and when the Administrative
Agent shall have received counterparts hereof that, when taken together, bear the signatures of
each of the other parties hereto. Delivery of an executed counterpart of a signature page of this
Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective
as delivery of a manually executed counterpart of this Agreement. 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.
58
SECTION 10.11 Confidentiality. The Administrative Agent and each Bank agree
that they 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 Company or the Guarantor (hereinafter collectively called “Confidential Information”),
subject to the Administrative Agent’s and each Bank’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 other Banks and to its subsidiaries and Affiliates and the subsidiaries and
Affiliates of its holding company, provided that the Administrative Agent or such Bank, as the
case may be, 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 Banks and the
Company or any of its Subsidiaries and Affiliates, (d) right to provide such information to (i)
participants, prospective participants, prospective assignees or assignees pursuant to Section
10.06, or (with the consent of the Company (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 as if it were a “Bank” party hereto or (ii) any actual or prospective
counterparty (or its advisors) to any swap, derivative or securitization transaction relating to the
Company and its obligations or to any actual or prospective credit insurance provider relating to
the Company and its obligations if prior thereto such counterparty or credit insurance provider
agrees in writing to maintain the confidentiality of such information on terms substantially
similar to those of this Section as if it were a “Bank” party hereto, and (e) right to provide such
information with the Company’s consent. Notwithstanding the foregoing, any such information
supplied to a Bank, 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. In addition, the Administrative Agent and the Banks may disclose the
existence of this Agreement and information about this Agreement to market data collectors and
other service providers to the lending industry and service providers to the Administrative Agent
and the Banks in connection with the administration of this Agreement, the other Credit
Documents and the Commitments.
SECTION 10.12 WAIVER OF JURY TRIAL. EACH OF THE COMPANY, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 10.13 [Reserved].
SECTION 10.14 USA PATRIOT Act. Each Bank hereby notifies the Company that
pursuant to the requirements of the Patriot Act, such Bank may be required to obtain, verify and
record information that identifies the Company and the Guarantor, which information includes
59
the name and address of the Company and the Guarantor and other information that will allow
such Bank to identify the Company and the Guarantor in accordance with said Act.
SECTION 10.15 No Fiduciary Duty. The Administrative Agent, each Bank and
their Affiliates (collectively, solely for purposes of this Section, the “Banks”), may have
economic interests that conflict with those of the Company and the Guarantor, their respective
stockholders and/or their affiliates. The Company 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 any Bank, on the one hand, and the Company, its stockholders or its
affiliates, on the other. The Company acknowledges and agrees that (i) the transactions
contemplated by the Credit Documents (including the exercise of rights and remedies hereunder
and thereunder) are arm’s-length commercial transactions between the Banks, on the one hand,
and the Company, on the other, and (ii) in connection therewith and with the process leading
thereto, (x) no Bank has assumed an advisory or fiduciary responsibility in favor of the
Company, 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 any Bank has advised, is currently advising or will advise the Company,
its stockholders or its Affiliates on other matters) or any other obligation to the Company except
the obligations expressly set forth in the Credit Documents and (y) each Bank is acting solely as
principal and not as the agent or fiduciary of the Company, its management, stockholders or
creditors or any other Person. The Company acknowledges and agrees that the Company 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 Company agrees that the Company will not claim that any Bank has
rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to it, in
connection with such transaction or the process leading thereto.
SECTION 10.16 Acknowledgement and Consent to Bail-In of EEA 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 and the
Guarantor acknowledges that any liability of any EEA Financial Institution arising under any
Credit Document may be subject to the write-down and conversion powers of an EEA
Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a) the application of any Write-Down and Conversion Powers by an EEA
Resolution Authority to any such liabilities arising hereunder which may be payable to it by any
party hereto that is an EEA 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 EEA Financial Institution, its parent entity, or a
bridge institution that may be issued to it or otherwise conferred on it, and that such
60
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 any EEA Resolution Authority.
SECTION 10.17 Electronic Execution of Assignments and Certain Other
Documents. The words “execute,” “execution,” “signed,” “signature,” and words of like import
in or related to any document to be signed in connection with this Agreement and the
transactions contemplated hereby (including without limitation Assignment and Assumptions,
amendments or other modifications, Notices of Borrowing, waivers and consents) shall be
deemed to include electronic signatures, the electronic matching of assignment terms and
contract formations on electronic platforms approved by the Administrative Agent, or the
keeping of records in electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act; provided that notwithstanding anything contained herein to the
contrary the Administrative Agent is under no obligation to agree to accept electronic signatures
in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to
procedures approved by it.
[Signature Pages Follow]
[Brighthouse – Signature Page to Term Loan 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.
COMPANY:
BRIGHTHOUSE FINANCIAL, INC.
By: /s/ Jin Chang Name: Jin Chang
Title: Vice President and Treasurer
U.S. Federal Tax Identification No.: 81-3846992
Gragg Building
11225 North Community House Road
Charlotte, NC 28277
Attention: Jin Chang, Treasurer
Tel: (980) 949-4289
Fax: (980) 949-3934
[Brighthouse – Signature Page to Term Loan Agreement]
BANKS:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Aamir Saleem
Name: Aamir Saleem
Title: Vice President
Administrative Agent’s Office
(for payments and requests for credit extensions):
Bank of America, N.A.
One Independence Center
Mail Code: NC1-001-05-46
Charlotte, NC 28255-0001
Attention: Patricia Santos
Telephone: (980) 387-3794
Facsimile: (704) 625-4200
Electronic Mail: patricia.santos@baml.com
Account No.:
Ref: Brighthouse Financial Inc.
ABA# 026009593
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
555 California Street, 4th Floor
San Francisco, CA 94104
Attention: Aamir Saleem, Agency Management
Telephone: (415) 436-2769
Facsimile: (415) 503-5089
Electronic Mail: aamir.saleem@baml.com
[Brighthouse – Signature Page to Term Loan Agreement]
BANK OF AMERICA, N.A., as a Bank
By: /s/ Chris Choi
Name: Chris Choi
Title: Director
[Brighthouse – Signature Page to Term Loan Agreement]
SUMITOMO MITSUI BANKING CORPORATION, as a Bank
By: /s/ Shane Klein
Name: Shane Klein
Title: Managing Director
EXHIBIT A
[Form of Note]
NOTE
New York, New York
_______, 20__
For value received, Brighthouse Financial, Inc. a Delaware corporation (the “Company”),
promises to pay to _____________ (the “Bank”), for the account of its Applicable Lending
Office, the unpaid principal amount of each Term Loan made by the Bank to the Company
pursuant to the Term Loan Agreement referred to below on the date provided for in the Term
Loan Agreement. The Company promises to pay interest on the unpaid principal amount of each
Term Loan on the dates and at the rate or rates provided for in the Term Loan Agreement. All
such payments of principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of the Administrative Agent.
Each Term Loan made by the Bank, the respective dates, amounts, types and the maturity
thereof and all repayments of the principal thereof shall be recorded on its books by the Bank
and, prior to any transfer hereof, appropriate notations to evidence the foregoing information
with respect to each Term Loan then outstanding shall be endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a part hereof;
provided that the failure of the Bank to make any such recordation or endorsement shall not
affect the obligations of the Company hereunder or under the Term Loan Agreement.
This note is one of the Notes referred to in the Term Loan Agreement dated as of July 21,
2017 among the Company, the Banks party thereto and Bank of America, N.A., as
Administrative Agent (as the same may be amended, amended and restated or otherwise
modified from time to time, the “Term Loan Agreement”). Terms defined in the Term Loan
Agreement are used herein with the same meanings. Reference is made to the Term Loan
Agreement for provisions for the prepayment hereof and the acceleration of the maturity hereof.
The Company, for itself, its successors, and its assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-payment of
this Note.
Delivery of an executed counterpart of a signature page of this Note by facsimile or other
electronic imaging means (e.g. “pdf” or “tif”) shall be effective as delivery of a manually
executed counterpart of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
[Signature Page Follows]
BRIGHTHOUSE FINANCIAL, INC.
By:
Name:
Title:
Note (cont’d)
TERM LOAN AND PAYMENTS OF PRINCIPAL
Date
Amount
of Term Loan
Type of Term
Loan
Amount of
Principal
Repaid Maturity Date
Notation
Made By
EXHIBIT B
[Form of Assignment and Assumption]
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the
Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the
“Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not
defined herein shall have the meanings given to them in the Term Loan Agreement identified
below (as amended, the “Term Loan Agreement”), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1
attached hereto are hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the
Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor,
subject to and in accordance with the Standard Terms and Conditions and the Term Loan
Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below
(i) all of the Assignor’s rights and obligations in its capacity as a Bank under the Term Loan
Agreement and any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such outstanding rights
and obligations of the Assignor under the facility identified below and (ii) to the extent permitted
to be assigned under applicable law, all claims, suits, causes of action and any other right of the
Assignor (in its capacity as a Bank) against any Person, whether known or unknown, arising
under or in connection with the Term Loan Agreement, any other documents or instruments
delivered pursuant thereto or the credit transactions governed thereby or in any way based on or
related to any of the foregoing, including contract claims, tort claims, malpractice claims,
statutory claims and all other claims at law or in equity related to the rights and obligations sold
and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant
to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such
sale and assignment is without recourse to the Assignor and, except as expressly provided in this
Assignment and Assumption, without representation or warranty by the Assignor.
1. Assignor: ____________________________
2. Assignee: [and is an Affiliate of [identify Bank]]
__________________________
4. Administrative Agent: Bank of America, N.A., as the administrative agent under the
Term Loan Agreement
5. Term Loan
Agreement:
Term Loan Agreement dated as of July 21, 2017 between
Brighthouse Financial, Inc., the Banks party thereto, and Bank of
America, N.A., as Administrative Agent
6. Assigned Interest:
Facility Assigned Aggregate Amount of Term Loan/ [undrawn
Commitments]
for all Banks
Amount of
Term Loan / [undrawn
Commitment] Assigned
Percentage Assigned of
Term Loan / [undrawn
Commitment]
$ $ %
$ $ %
$ $ %
Effective Date: ______________ ___, 20___ [TO BE INSERTED BY
ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF
RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
Name:
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
Name:
Title:
[Consented to] and Accepted:
BANK OF AMERICA, N.A., as Administrative Agent
By:
Name:
Title:
[Consented to:]
BRIGHTHOUSE FINANCIAL, INC.
By:
Name:
Title:
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and
beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien,
encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Term Loan
Agreement, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Term Loan Agreement or any collateral thereunder, (iii) the financial condition of the
Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of the
Term Loan Agreement or (iv) the performance or observance by the Company, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under the
Term Loan Agreement.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has full power and
authority, and has taken all action necessary, to execute and deliver this Assignment and
Assumption and to consummate the transactions contemplated hereby and to become a Bank
under the Term Loan Agreement, (ii) it satisfies the requirements, if any, specified in the Term
Loan Agreement that are required to be satisfied by it in order to acquire the Assigned Interest
and become a Bank, (iii) from and after the Effective Date, it shall be bound by the provisions of
the Term Loan Agreement as a Bank thereunder and, to the extent of the Assigned Interest, shall
have the obligations of a Bank thereunder, (iv) it has received a copy of the Term Loan
Agreement, and has received or has been accorded the opportunity to receive copies of the most
recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such
other documents and information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest
on the basis of which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Bank, (v) if it is a Bank that is not incorporated under
the laws of the United States of America or any state thereof, attached to this Assignment and
Assumption is any documentation required to be delivered by it pursuant to the terms of the
Term Loan Agreement, duly completed and executed by the Assignee, (vi) it is sophisticated
with respect to decisions to acquire assets of the type represented by the Assigned Interest and
either it, or the Person exercising discretion in making its decision to acquire the Assigned
Interest, is experienced in acquiring assets of such type, and (vii) the Assignee is not and will not
be (1) an employee benefit plan subject to Title I of ERISA, (2) a plan or account subject to
Section 4975 of the Code; (3) an entity deemed to hold “plan assets” of any such plans or
accounts for purposes of ERISA or the Code; or (4) a “governmental plan” within the meaning of
ERISA; and (b) agrees that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in taking or not taking
action under the Term Loan Agreement, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Term Loan Agreement are required to be performed
by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of the Assigned Interest (including payments of principal, interest,
fees and other amounts) to the Assignor for amounts which have accrued to but excluding the
Effective Date and to the Assignee for amounts which have accrued from and after the Effective
Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together
shall constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by fax transmission or other electronic imaging means (e.g. “pdf”
or “tif”) shall be effective as delivery of a manually executed counterpart of this Assignment and
Assumption. This Assignment and Assumption shall be governed by, and construed in
accordance with, the law of the State of New York.
EXHIBIT C
Form of Guaranty
Please see attached.
GUARANTY
[___________], 201[_]
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of credit and/or financial accommodation heretofore or hereafter from time to time
made or granted to BRIGHTHOUSE FINANCIAL, INC. (the “Borrower”) by BANK OF
AMERICA, N.A. (“Bank of America”), as administrative agent (the “Administrative Agent”)
and the banks (the “Banks”) from time to time party to that certain Term Loan Agreement, dated
as of July 21, 2017 (as amended, restated, amended and restated, supplemented or otherwise
modified in effect from time to time, the “Term Loan Agreement”; capitalized terms used herein
without definition shall have the definitions set forth therein), by and among the Borrower, the
Banks, and Bank of America, as Administrative Agent, the undersigned (the “Guarantor”)
hereby furnishes its guaranty to the Administrative Agent, for the benefit of itself and the Banks,
as follows:
1. Guaranty. The Guarantor hereby unconditionally and irrevocably
guarantees to Administrative Agent, for the benefit of itself and the Banks, the full and
prompt payment when due, whether at stated maturity, by required prepayment, upon
acceleration, demand or otherwise, and at all times thereafter, of the Guaranteed
Obligations (as hereafter defined) and the punctual performance of all of the terms
contained in the Credit Documents and other documents executed by the Borrower in
favor of Administrative Agent and the Banks in connection with the Guaranteed
Obligations. This Guaranty is a guaranty of payment and performance and is not merely
a guaranty of collection. As used herein, the term “Guaranteed Obligations” means the
Obligations and any and all existing and future indebtedness, obligations, and liabilities
of every kind, nature and character, direct or indirect, absolute or contingent, liquidated
or unliquidated, voluntary or involuntary and whether for principal, interest, premiums,
fees, indemnities, damages, costs, expenses or otherwise, of the Borrower under the
Term Loan Agreement and the other Credit Documents (including all renewals,
extensions, amendments, refinancings and other modifications thereof and all costs,
attorneys’ fees and expenses incurred by the Administrative Agent and any other Bank
in connection with the collection or enforcement thereof to the same extent required to
be paid by the Borrower pursuant to the terms of the Credit Documents). Without
limiting the generality of the foregoing, the Guaranteed Obligations shall include any
such indebtedness, obligations, and liabilities which may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under any proceeding or case
commenced by or against the Guarantor or the Borrower under the Bankruptcy Code
(Title 11, United States Code), any successor statute or any other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of
the United States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and shall
include interest that accrues after the commencement by or against the Borrower or the
Guarantor of any proceeding under any Debtor Relief Laws. Anything contained herein
to the contrary notwithstanding, the obligations of the Guarantor hereunder at any time
shall be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer or
conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or
any comparable provisions of any similar federal or state law.
2. No Setoff or Deductions; Taxes; Payments. The Guarantor shall make all
payments hereunder without setoff or counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or hereafter imposed or
levied by any jurisdiction or any political subdivision thereof or taxing or other authority
therein unless the Guarantor is compelled by law to make such deduction or
withholding. With respect to any payments made pursuant to this Guaranty, the
provisions of Section 8.05 of the Term Loan Agreement (and all defined terms contained
therein) shall apply mutatis mutandis, substituting references to the “Company” for
references to the “Guarantor” as appropriate. The obligations of the Guarantor under
this paragraph shall survive the payment in full of the Guaranteed Obligations and
termination of this Guaranty.
3. Rights of the Administrative Agent and the Banks. The Guarantor
consents and agrees that the Administrative Agent may, at any time and from time to
time, without notice or demand, and without affecting the enforceability or continuing
effectiveness hereof, (a) amend, extend, renew, compromise, discharge, accelerate or
otherwise change the time for payment or the terms of the Guaranteed Obligations or
any part thereof, (b) take, hold, exchange, enforce, waive, release, fail to perfect, sell, or
otherwise dispose of any security for the payment of this Guaranty or any Guaranteed
Obligations; (c) apply such security and direct the order or manner of sale thereof as the
Administrative Agent in its sole discretion may determine; and (d) release or substitute
one or more of any endorsers or other guarantors of any of the Guaranteed Obligations.
Without limiting the generality of the foregoing, the Guarantor consents to the taking of,
or failure to take, any action which might in any manner or to any extent vary the risks
of the Guarantor under this Guaranty or which, but for this provision, might operate as a
discharge of the Guarantor. The provisions of this Section 3 shall not derogate from any
approval or consent rights the Borrower may have with respect to any matters referenced
herein.
4. Certain Waivers. The Guarantor waives to the fullest extent permitted by
law (a) any defense arising by reason of any disability or other defense of the Borrower
or any other guarantor, or the cessation from any cause whatsoever (including any act or
omission of the Administrative Agent or any other Bank) of the liability of the
Borrower; (b) any defense based on any claim that the Guarantor’s obligations exceed or
are more burdensome than those of the Borrower; (c) the benefit of any statute of
limitations affecting the Guarantor’s liability hereunder; (d) any right to require the
Administrative Agent or any Bank to proceed against the Borrower, proceed against or
exhaust any security for the Guaranteed Obligations, or pursue any other remedy in the
Administrative Agent’s or Bank’s power whatsoever and any defense based upon the
doctrines of marshalling of assets or of election of remedies; (e) any benefit of and any
right to participate in any security now or hereafter held by the Administrative Agent or
any Bank; (f) any fact or circumstance related to the Guaranteed Obligations which
might otherwise constitute a defense to the obligations of the Guarantor under this
Guaranty; and (g) any and all other defenses or benefits that may be derived from or
afforded by applicable law limiting the liability of or exonerating guarantors or sureties,
other than the defense that the Guaranteed Obligations have been fully performed and
indefeasibly paid in full in cash.
The Guarantor expressly waives all presentments, demands for payment or performance, notices
of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other
notices or demands of any kind or nature whatsoever with respect to the Guaranteed Obligations,
and all notices of acceptance of this Guaranty or of the existence, creation or incurrence of new
or additional Guaranteed Obligations. This Guaranty shall not be affected by the genuineness,
validity, regularity or enforceability of the Guaranteed Obligations, or any instrument or
agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability,
perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance
relating to the Guaranteed Obligations which might otherwise constitute a defense to the
obligations of the Guarantor under this Guaranty, and the Guarantor hereby irrevocably waives
any defenses it may now have or hereafter acquire in any way relating to any or all of the
foregoing.
5. Obligations Independent. The obligations of the Guarantor hereunder are
those of primary obligor, and not merely as surety, and are independent of the
Guaranteed Obligations and the obligations of any other guarantor, and a separate action
may be brought against the Guarantor to enforce this Guaranty whether or not the
Borrower or any other person or entity is joined as a party.
6. Subrogation. The Guarantor shall not exercise any right of subrogation,
contribution, indemnity, reimbursement or similar rights with respect to any payments it
makes under this Guaranty until all of the Guaranteed Obligations and any amounts
payable under this Guaranty have been indefeasibly paid and performed in full and any
commitments of the Banks and facilities provided by the Banks with respect to the
Guaranteed Obligations are terminated. If any amounts are paid to the Guarantor in
violation of the foregoing limitation, then such amounts shall be held in trust for the
benefit of the Banks and shall forthwith be paid to the Administrative Agent for the
benefit of the Banks to reduce the amount of the Guaranteed Obligations, whether
matured or unmatured.
7. Termination; Reinstatement. This Guaranty is a continuing and
irrevocable guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other amounts
payable under this Guaranty are paid in full in cash (other than contingent obligations as
to which no claim has yet been made) and any commitments of the Banks or facilities
provided by the Banks with respect to the Guaranteed Obligations are terminated, at
which time this Guaranty shall automatically terminate and be released, unless released
by the Administrative Agent as set forth in Section 7.12 of the Term Loan Agreement.
Notwithstanding the foregoing, this Guaranty shall continue in full force and effect or be
revived, as the case may be, if any payment by or on behalf of the Borrower or the
Guarantor is made, or the Administrative Agent or any other Bank exercises its right of
setoff, in respect of the Guaranteed Obligations and such payment or the proceeds of
such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement entered into by
the Administrative Agent or any other Bank in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any proceeding under any Debtor Relief
Laws or otherwise, all as if such payment had not been made or such setoff had not
occurred and whether or not the Administrative Agent or any other Bank is in possession
of or has released this Guaranty and regardless of any prior revocation, rescission,
termination or reduction. The obligations of the Guarantor under this paragraph shall
survive termination of this Guaranty.
8. Subordination. The Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to the Guarantor, whether now
existing or hereafter arising, including but not limited to any obligation of the Borrower
to the Guarantor as subrogee of the Administrative Agent or any other Bank or resulting
from the Guarantor’s performance under this Guaranty, to the payment in full in cash of
all Guaranteed Obligations (other than contingent obligations as to which no claim has
yet been made). If the Administrative Agent so requests, any such obligation or
indebtedness of the Borrower to the Guarantor shall be enforced and performance
received by the Guarantor as trustee for the Banks and the proceeds thereof shall be paid
over to the Administrative Agent for the benefit of the Banks on account of the
Guaranteed Obligations, but without reducing or affecting in any manner the liability of
the Guarantor under this Guaranty.
9. Stay of Acceleration. In the event that acceleration of the time for payment
of any of the Guaranteed Obligations is stayed, in connection with any case commenced
by or against the Guarantor or the Borrower under any Debtor Relief Laws, or
otherwise, all such amounts shall nonetheless be payable by the Guarantor immediately
upon demand by the Administrative Agent
10. Expenses. The Guarantor shall pay on demand to the Administrative Agent
all reasonable and document out-of-pocket expenses (including reasonable and
documented attorneys’ fees and disbursements of one firm of outside counsel to the
Administrative Agent and the Banks, taken as whole, unless there is a conflict of interest
among such parties in which case expenses shall include the reasonable and documented
fees and disbursements of nor more than such number of counsel necessary to represent
such conflicting interests) in any way relating to the enforcement or protection of the
Administrative Agent or the other Bank’s rights under this Guaranty or in respect of the
Guaranteed Obligations, including any incurred during any “workout” or restructuring in
respect of the Guaranteed Obligations and any incurred in the preservation, protection or
enforcement of any rights of the Administrative Agent or any other Bank in any
proceeding under any Debtor Relief Laws. The obligations of the Guarantor under this
paragraph shall survive the payment in full of the Guaranteed Obligations and
termination of this Guaranty.
11. Miscellaneous. The Administrative Agent and each other Bank’s books and
records showing the amount of the Guaranteed Obligations shall be admissible in
evidence in any action or proceeding, and shall be binding upon the Guarantor and
conclusive, absent manifest error, for the purpose of establishing the amount of the
Guaranteed Obligations. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the
Administrative Agent and the Guarantor. No failure by the Administrative Agent or any
other Bank to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy or power hereunder preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law or in equity. The
unenforceability or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein. Unless otherwise agreed by the
Administrative Agent and the Guarantor in writing, this Guaranty is not intended to
supersede or otherwise affect any other guaranty now or hereafter given by the
Guarantor for the benefit of the Administrative Agent or any other Bank or any term or
provision thereof.
12. Condition of Borrower. The Guarantor acknowledges and agrees that it has
the sole responsibility for, and has adequate means of, obtaining from the Borrower and
any other guarantor such information concerning the financial condition, business and
operations of the Borrower and any such other guarantor as the Guarantor requires, and
that the Administrative Agent and the Banks have no duty, and the Guarantor is not
relying on the Administrative Agent or the Banks at any time, to disclose to the
Guarantor any information relating to the business, operations or financial condition of
the Borrower or any other guarantor (the guarantor waiving any duty on the part of the
Administrative Agent or the Banks to disclose such information and any defense relating
to the failure to provide the same).
13. Setoff. The Guarantor agrees that, in addition to (and without limitation of)
any right of setoff, banker’s lien or counterclaim the Administrative Agent or any other
Bank may otherwise have, the Administrative Agent or any other Bank shall be entitled,
at their respective option, to offset balances (general or special, time or demand,
provisional or final) held by it for the account of the Guarantor at any of the
Administrative Agent’s or such other Bank’s offices, in U.S. dollars or in any other
currency, against any amount payable by the Guarantor under this Guaranty which is not
paid when due (regardless of whether such balances are then due to the Guarantor), in
which case it shall promptly notify the Guarantor thereof; provided that the
Administrative Agent or such other Bank's failure to give such notice shall not affect the
validity thereof.
14. Representations and Warranties. The Guarantor hereby makes each of the
representations and warranties set forth in the Term Loan Agreement expressly
applicable to the Guarantor at each time and on each date such forth therein.
15. Indemnification and Survival. The Guarantor shall be subject to the
indemnification provisions of Section 10.03 of the Term Loan Agreement to the same
extent the Borrower is subject thereto, substituting references therein to the “Company”
with references to the “Guarantor” as appropriate.
16. GOVERNING LAW; Assignment; Jurisdiction; Notices. THIS
GUARANTY AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF
ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON,
ARISING OUT OF OR RELATING TO THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK. This Guaranty shall (a) bind the Guarantor and its
successors and assigns, provided that the Guarantor may not assign its rights or
obligations under this Guaranty without the prior written consent of the Administrative
Agent (and any attempted assignment without such consent shall be void), and (b) inure
to the benefit of the Administrative Agent and the Banks and their successors and
assigns and the Administrative Agent and the Banks may, without notice to the
Guarantor and without affecting the Guarantor’s obligations hereunder, assign, sell or
grant participations in the Guaranteed Obligations and this Guaranty, in whole or in part.
The Guarantor hereby irrevocably (i) submits to the exclusive jurisdiction of any United
States Federal or State court sitting in the State of New York, City of New York in any
action or proceeding arising out of or relating to this Guaranty, and (ii) waives to the
fullest extent permitted by law any defense asserting an inconvenient forum in
connection therewith. Service of process by the Administrative Agent in connection
with such action or proceeding shall be binding on the Guarantor if sent to the Guarantor
by registered or certified mail at its address specified below or such other address as
from time to time notified by the Guarantor. The Guarantor agrees that the
Administrative Agent and the Banks may disclose to any assignee of or participant in, or
any prospective assignee of or participant in, any of its rights or obligations of all or part
of the Guaranteed Obligations any and all information in the Administrative Agent or
any other Bank’s possession concerning the Guarantor, this Guaranty and any security
for this Guaranty. All notices and other communications to the Guarantor under this
Guaranty shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopier to the Guarantor at its address
set forth below or at such other address in the United States as may be specified by the
Guarantor in a written notice delivered to the Administrative Agent at such office as the
Administrative Agent may designate for such purpose from time to time in a written
notice to the Guarantor.
17. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE
EXTENT ALLOWED BY APPLICABLE LAW, THE GUARANTOR AND THE
ADMINISTRATIVE AGENT EACH HEREBY IRREVOCABLY WAIVES ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, THE GUARANTEED
OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS
GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
18. Counterparts; Integration; Effectiveness. This Guaranty may be executed
in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
contract. This Guaranty and the other Credit Documents constitute the entire contract
among the parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the subject matter
hereof. Delivery of an executed counterpart of a signature page to this Guaranty by
facsimile or other electronic imaging means (e.g. “pdf” or “tif”) shall be effective as
delivery of a manually executed counterpart of this Guaranty.
19. Credit Document Terms. The Guarantor shall at all times comply with
the terms and provisions of the Term Loan Agreement which are expressly applicable to
the Guarantor therein.
[Signature Page Follows]
Executed by the undersigned as of the date first set forth above.
BRIGHTHOUSE HOLDINGS, LLC
By:
Name:
Title:
Schedule I – Commitments
Banks Commitment ($)
Bank of America, N.A. ...................................................................................... $300,000,000
Sumitomo Mitsui Banking Corporation. ............................................................ $300,000,000
AGGREGATE COMMITMENTS .................................................................... $600,000,000
Schedule II – Material Subsidiaries
Name Jurisdiction Type
Brighthouse Holdings, LLC Delaware Limited Liability Company
Brighthouse Life Insurance Company Delaware Corporation
Brighthouse Reinsurance Company of
Delaware Delaware Corporation
Schedule III – Hybrid Instruments
None.
Schedule IV – Restructuring Transaction
Structure after giving effect to the Restructuring Transaction and prior to consummation of the
Spin-Off Transaction:
Series A
Schedule V – Spin-Off Transaction
Structure after giving effect to the Spin-Off Transaction: