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exhibit 10.1
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$140,000,000
CREDIT AGREEMENT
Dated as of May 24, 2000
Among
REINSURANCE GROUP OF AMERICA, INCORPORATED
THE BANKS LISTED ON THE SIGNATURE PAGES HEREOF
THE BANK OF NEW YORK
as Administrative Agent
BANK OF AMERICA, N.A.
as Syndication Agent
FLEET NATIONAL BANK
as Documentation Agent
ROYAL BANK OF CANADA
as Co-Agent
BNY CAPITAL MARKETS, INC.
and
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers
and
BNY CAPITAL MARKETS, INC.
as Book Runner
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CREDIT AGREEMENT
Dated as of May 24, 2000
REINSURANCE GROUP OF AMERICA, INCORPORATED, as Borrower, the
BANKS, THE BANK OF NEW YORK, as Administrative Agent, BANK OF AMERICA, N.A., as
Syndication Agent, FLEET NATIONAL BANK, as Documentation Agent and ROYAL BANK OF
CANADA, as Co-Agent, agree as follows (with certain terms used herein being
defined in Article 10):
ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend. Upon the terms and subject to the
conditions of this Agreement, each Bank severally agrees to make, from time to
time during the period from the Agreement Date through the Termination Date, one
or more Loans to the Borrower in an aggregate unpaid principal amount not
exceeding at any time such Bank's Commitment at such time. Subject to Section
1.06 and the other terms and conditions of this Agreement, the Loans may, at the
option of the Borrower, be made as, and from time to time continued as or
converted into, Base Rate Loans or Eurodollar Rate Loans of any permitted Type,
or any combination thereof. The aggregate amount of the Commitments on the
Agreement Date is $140,000,000.
Section 1.02. Manner of Borrowing. (a) The Borrower shall give the
Administrative Agent notice (which shall be irrevocable) no later than 11:00
a.m. on, in the case of Base Rate Loans, the requested date for the making of
such Loans, and, in the case of Eurodollar Rate Loans, the third Eurodollar
Business Day, before the requested date for the making of such Loans. Each such
notice shall be in the form of Schedule 1.02 and shall specify (i) the requested
date for the making of the requested Loans, which shall be, in the case of Base
Rate Loans, a Business Day and, in the case of Eurodollar Rate Loans, a
Eurodollar Business Day, (ii) the Type or Types of Loans requested and (iii) the
amount of each such Type of Loan, the aggregate of which amounts for all Types
of Loans requested shall be not less than the lesser of (x) $2,500,000 and
integral multiples of $500,000 in excess thereof and (y) the aggregate amount of
the unused Commitments. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of the amount
and Type of each Loan to be made by such Bank on the requested date specified
therein.
(b) Not later than 1:00 p.m. on each requested date for the making of
Loans, each Bank shall, if it has received the notice contemplated by Section
1.02(a) in a timely fashion, make available to the Administrative Agent, in
Dollars in funds immediately available to the Administrative Agent at the
Administrative Agent's Office, the Loans to be made by such Bank on such date.
Any Bank's failure to make any Loan to be made by it on the requested date
therefor shall not relieve any other Bank of its obligation to make any Loan to
be made by such other Bank on such date, but such other Bank shall not be liable
for such failure.
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(c) If a Bank shall have received notice of the making of Loans in
accordance with Section 1.02(b) hereof, then unless the Administrative Agent
shall have received notice from a Bank prior to 1:00 p.m. on the requested date
for the making of any Loans that such Bank will not make available to the
Administrative Agent the Loans requested to be made by such Bank on such date,
the Administrative Agent may assume that such Bank has made such Loans available
to the Administrative Agent on such date in accordance with Section 1.02(b) and
the Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the Borrower on such date a corresponding amount
on behalf of such Bank. If and to the extent such Bank shall not have so made
available to the Administrative Agent the Loans requested to be made by such
Bank on such date and the Administrative Agent shall have so made available to
the Borrower a corresponding amount on behalf of such Bank, such Bank shall, on
demand, pay to the Administrative Agent such corresponding amount together with
interest thereon, for each day from the date such amount shall have been so made
available by the Administrative Agent to the Borrower until the date such amount
shall have been repaid to the Administrative Agent, at the Federal Funds Rate
until (and including) the third Business Day after demand is made and thereafter
at the Base Rate. If such Bank does not pay such corresponding amount promptly
upon the Administrative Agent's demand therefor, the Administrative Agent may
notify the Borrower and the Borrower shall immediately repay such corresponding
amount to the Administrative Agent together with accrued interest thereon at the
applicable rate or rates provided in Section 1.03(a).
(d) All Loans made available to the Administrative Agent in accordance
with Section 1.02(b) shall be disbursed by the Administrative Agent not later
than 1:00 p.m. on the requested date therefor in Dollars in funds immediately
available to the Borrower by credit to an account of the Borrower at the
Administrative Agent's Office or in such other manner as may have been specified
in the applicable notice and as shall be acceptable to the Administrative Agent.
Section 1.03. Interest. (a) Rates. (i) Subject to Section 1.03(a)(ii), (A)
each Loan shall bear interest on the outstanding principal amount thereof at a
rate per annum equal to (1) so long as it is a Base Rate Loan, the Base Rate as
in effect from time to time plus the Applicable Base Rate Margin and (2) so long
as it is a Eurodollar Rate Loan, the applicable Adjusted Eurodollar Rate plus
the Applicable Eurodollar Rate Margin and (B) each other amount due and payable
under the Loan Documents shall, to the maximum extent permitted by Applicable
Law, bear interest at a rate per annum equal to the Base Rate as in effect from
time to time plus the Applicable Base Rate Margin.
(ii) During an Event of Default (and whether before or after
judgment), each Loan (whether or not due) and, to the maximum extent permitted
by Applicable Law, each other amount due and payable under the Loan Documents
shall bear interest at a rate per annum equal to the applicable Post-Default
Rate.
(b) Payment. Interest shall be payable, in the case of Loans that are
(i) Base Rate Loans, on each Interest Payment Date, (ii) Eurodollar Rate Loans,
on the last day of each applicable Interest Period (and, if an Interest Period
is longer than three months, at intervals of three months after the first day of
such Interest Period), (iii) any Loan, when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or
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converted, but only to the extent then accrued on the amount then so due or
converted, and (iv) all other amounts due and payable under the Loan Documents,
on demand. Interest at the Post-Default Rate shall be payable on demand.
(c) Conversion and Continuation. (i) All or any part of the principal
amount of Loans of any Type may, on any Business Day, be converted into any
other Type or Types of Loans, except that (A) Eurodollar Rate Loans may be
converted only on the last day of an applicable Interest Period and (B) Base
Rate Loans may be converted into Eurodollar Rate Loans only on a Eurodollar
Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and
until such Loans are converted into Loans of another Type. Eurodollar Rate Loans
of any Type shall continue as Loans of such Type until the end of the then
current Interest Period therefor, at which time they shall be automatically
converted into Base Rate Loans unless the Borrower shall have given the
Administrative Agent notice in accordance with Section 1.03(c)(iv) requesting
either that such Loans continue as Loans of such Type for another Interest
Period or that such Loans be converted into Loans of another Type at the end of
such Interest Period.
(iii) Notwithstanding anything to the contrary contained in
Section 1.03(c)(i) or (ii), during a Default, the Administrative Agent may
notify the Borrower that Loans may only be converted into or continued as Loans
of certain specified Types and, thereafter, until no Default shall continue to
exist, Loans may not be converted into or continued as Loans of any Type other
than one or more of such specified Types.
(iv) The Borrower shall give the Administrative Agent notice
(which shall be irrevocable) of each conversion of Loans or continuation of
Eurodollar Rate Loans no later than 11:00 a.m. on, in the case of a conversion
into Base Rate Loans, the Business Day of, and, in the case of a conversion into
or continuation of Eurodollar Rate Loans, the third Eurodollar Business Day
before, the requested date of such conversion or continuation. Each notice of
conversion or continuation shall be in the form of Schedule 1.03(c)(iv) and
shall specify (A) the requested date of such conversion or continuation, (B) the
amount and Type and, in the case of Eurodollar Rate Loans, the last day of the
applicable Interest Period of the Loans to be converted or continued and (C) the
amount and Type or Types of Loans into which such Loans are to be converted or
as which such Loans are to be continued. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of (x) the contents
thereof, (y) the amount and Type and, in the case of Eurodollar Rate Loans, the
last day of the applicable Interest Period of each Loan to be converted or
continued by such Bank and (z) the amount and Type or Types of Loans into which
such Loans are to be converted or as which such Loans are to be continued.
(d) Maximum Interest Rate. Nothing contained in the Loan Documents
shall require the Borrower at any time to pay interest at a rate exceeding the
Maximum Permissible Rate. If interest payable by the Borrower on any date would
exceed the maximum amount permitted by the Maximum Permissible Rate, such
interest payment shall automatically be reduced to such maximum permitted
amount, and interest for any subsequent period, to the extent less than the
maximum amount permitted for such period by the Maximum Permissible Rate, shall
be increased by the unpaid amount of such reduction. Any interest actually
received
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for any period in excess of such maximum amount permitted for such period shall
be deemed to have been applied as a prepayment of the Loans.
Section 1.04. Repayment. The Loans shall mature and become due and payable,
and shall be repaid by the Borrower, in full on the Termination Date.
Section 1.05. Prepayments. (a) Optional Prepayments. The Borrower may, at
any time and from time to time, prepay the Loans in whole or in part, without
premium or penalty (but subject to Section 7.04), except that any partial
prepayment shall be in an aggregate principal amount of at least $2,500,000 and
integral multiples of $500,000 in excess thereof. The Borrower shall give the
Administrative Agent notice of each prepayment pursuant to this Section 1.05(a)
no later than 11:00 a.m. on, in the case of a prepayment of Base Rate Loans, the
Business Day of, and, in the case of a prepayment of Eurodollar Rate Loans, the
third Eurodollar Business Day before, the date of such prepayment. Each such
notice of prepayment shall be in the form of Schedule 1.05(a) and shall specify
(i) the date such prepayment is to be made and (ii) the amount and Type and, in
the case of Eurodollar Rate Loans, the last day of the applicable Interest
Period of the Loans to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
the amount and Type and, in the case of Eurodollar Rate Loans, the last day of
the applicable Interest Period of each Loan of such Bank to be prepaid. Amounts
to be prepaid pursuant to this Section 1.05(a) shall irrevocably be due and
payable on the date specified in the applicable notice of prepayment, together
with interest thereon as provided in Section 1.03(b).
(b) Mandatory Partial Repayment. If a Change of Control shall be deemed
to have occurred and one or more Banks shall have delivered a Repayment Notice,
the Administrative Agent, upon notice to the Borrower, shall require the
Borrower to, and the Borrower shall, prepay no later than the fifteenth day
following the date such notice is given, the principal of and interest on the
Loans and the Notes of, and all other amounts owing under the Loan Documents to,
each such Bank specified in such notice; provided, however, that if Banks
constituting the Required Banks shall have delivered Repayment Notices, the
Administrative Agent, upon notice to the Borrower, shall require the Borrower
to, and the Borrower shall, prepay, no later than the fifteenth day following
the date such notice is given, the principal of and interest on the Loans and
the Notes and all other amounts owing under the Loan Documents.
Section 1.06. Limitation on Types of Loans. Notwithstanding anything to the
contrary contained in this Agreement, the Borrower shall borrow, prepay, convert
and continue Loans in a manner such that (a) the aggregate principal amount of
Eurodollar Rate Loans of the same Type and having the same Interest Period shall
at all times be not less than $1,000,000, (b) there shall not be, at any one
time, more than six Interest Periods in effect with respect to Eurodollar Rate
Loans of all Types and (c) no payment of Eurodollar Rate Loans will have to be
made prior to the last day of an applicable Interest Period in order to repay
the Loans in the amounts and (subject to Section 1.11(e)) on the dates specified
in Section 1.04.
Section 1.07. Reduction of Commitments. (a) Optional Reduction.The Borrower
may reduce the Commitments by giving the Administrative Agent notice (which
shall be irrevocable) thereof no later than 11:00 a.m. on the fifth Business Day
before the requested date of such reduction, except that, (a) no partial
reduction of the Commitments shall be in an aggregate
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amount less than $10,000,000 and integral multiples of $5,000,000 in excess
thereof and (b) no reduction may reduce the Commitments to an amount less than
the aggregate amount of Loans outstanding. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
the amount to which such Bank's Commitment is to be reduced.
(b) Automatic Reduction. If the Administrative Agent shall require that
the Loans be prepaid in accordance with Section 1.05(b), the Commitment of each
Bank to whom such prepayment is due and payable shall immediately terminate
without further action by the Administrative Agent or any Bank.
Section 1.08. Fees. (a) Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a facility fee on the daily
amount of such Bank's Commitment for each day from Agreement Date through the
Termination Date at a rate per annum of the Applicable Facility Fee, payable on
successive Interest Payment Dates, on the Termination Date and on the date of
any reduction of such Commitment (to the extent accrued and unpaid on the amount
of the reduction).
(b) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent, for its own account the fees payable under the Agent's Fee
Letter. Such fees shall be payable in the amounts and at the times provided
therein.
(c) Fees Non-Refundable. None of the fees payable under this Section
1.08 shall be refundable in whole or in part.
Section 1.09. Computation of Interest and Fees. Interest and the facility
fees shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed. Interest for any period shall be calculated from
and including the first day thereof to but excluding the last day thereof.
Section 1.10. Evidence of Indebtedness. Each Bank's Loans and the
Borrower's obligation to repay such Loans with interest in accordance with the
terms of this Agreement shall be evidenced by this Agreement, the records of
such Bank and a single Note payable to the order of such Bank which, at the
request of a Bank with respect to its Note in accordance with Section 9.18, may
be a Registered Note. The records of each Bank shall be prima facie evidence of
such Bank's Loans and accrued interest thereon and of all payments made in
respect thereof.
Section 1.11. Payments by the Borrower. (a) Time, Place and Manner. All
payments due to the Administrative Agent under the Loan Documents shall be made
to the Administrative Agent at the Administrative Agent's Office or at such
other address as the Administrative Agent may designate by notice to the
Borrower. All payments due to any Bank under the Loan Documents shall, in the
case of payments on account of principal of or interest on the Loans or fees, be
made to the Administrative Agent at the Administrative Agent's Office and, in
the case of all other payments, be made directly to such Bank at its Domestic
Lending Office or at such other address as such Bank may designate by notice to
the Borrower. All payments due to any Bank under the Loan Documents, whether
made to the Administrative Agent or directly to such Bank, shall be made for the
account of, in the case of payments in respect of Eurodollar Rate
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Loans, such Bank's Eurodollar Lending Office and, in the case of all other
payments, such Bank's Domestic Lending Office. A payment by the Borrower shall
not be deemed to have been made on any day unless such payment has been received
by the required Person, at the required place of payment, in Dollars in funds
immediately available to such Person at such place, no later than 1:00 p.m. on
such day.
(b) No Reductions. All payments due to the Administrative Agent or any
Bank under the Loan Documents, and all other terms, conditions, covenants and
agreements to be observed and performed by the Borrower thereunder, shall be
made, observed or performed by the Borrower without any reduction or deduction
whatsoever, including any reduction or deduction for any set-off, recoupment,
counterclaim (whether sounding in tort, contract or otherwise) or Tax, except,
subject to Section 1.11(c), for any withholding or deduction for Taxes required
to be withheld or deducted under Applicable Law.
(c) Taxes. If under Applicable Law any Tax is required to be withheld
or deducted by the Borrower from, or is otherwise payable by the Borrower in
connection with, any payment to the Administrative Agent or any Bank under the
Loan Documents, the Borrower (i) shall (A), if so required, withhold or deduct
the amount of such Tax from such payment and, in any case, pay such Tax to the
appropriate taxing authority in accordance with Applicable Law and (B) indemnify
the Administrative Agent and such Bank in accordance with the provisions of
Section 9.02(d) against its failure so to do and (ii) shall pay to the
Administrative Agent or such Bank, as applicable, such additional amounts as may
be necessary so that the net amount received by the Administrative Agent or such
Bank with respect to such payment, after withholding or deducting all Taxes
required to be withheld or deducted by the Borrower, is equal to the full amount
payable under the Loan Documents. If any Tax is withheld or deducted by the
Borrower from, or is otherwise payable by the Borrower in connection with, any
payment payable to the Administrative Agent or any Bank under the Loan
Documents, the Borrower shall, as soon as possible after the date of such
payment, furnish to the Administrative Agent or such Bank, as applicable, the
original or a certified copy of a receipt for such Tax from the applicable
taxing authority. If any payment due to the Administrative Agent or any Bank
under the Loan Documents is or is expected to be made without withholding or
deducting therefrom, or otherwise paying in connection therewith, any Tax
payable by the Borrower to any taxing authority, the Borrower shall, within 30
days after any request from the Administrative Agent or such Bank, as
applicable, furnish to the Administrative Agent or such Bank a certificate from
such taxing authority, or an opinion of counsel acceptable to the Administrative
Agent or such Bank, in either case stating that no Tax payable to such taxing
authority was or is, as the case may be, required to be withheld or deducted
from, or otherwise paid by the Borrower in connection with, such payment.
(d) Taxes Payable by the Administrative Agent or any Bank. The Borrower
shall, promptly upon request by the Administrative Agent or any Bank for the
payment thereof, pay to the Administrative Agent or such Bank, as the case may
be, (i) all Taxes (other than Bank Taxes) payable by the Administrative Agent or
such Bank, as the case may be, with respect to any payment due to the
Administrative Agent or such Bank under the Loan Documents and (ii) all Taxes
payable by the Administrative Agent or such Bank as a result of payments made by
such Borrower (whether made to a taxing authority or to the Administrative Agent
or such Bank) pursuant to this Section 1.11(d).
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(e) Exemption from U.S. Withholding Taxes. There shall be submitted to
the Borrower and the Administrative Agent, (i) on or before the first date that
interest or fees are payable to such Bank under the Loan Documents, (A) if at
the time the same are applicable, (1) by each Bank that is not a United States
Person, two duly completed and signed copies of Internal Revenue Service Form
W-8BEN, W8ECI or W-8IMY in any such case entitling such Bank to a complete
exemption from withholding of any United States federal income taxes on all
amounts to be received by such Bank under the Loan Documents, or (2) by each
bank that is a Non-US Bank, (x) a duly completed Internal Revenue Service Form
W-8BEN and (y) a certification substantially in the Form of Schedule 1.11(e)
that such Bank is a Non-US Bank or (B) if at the time any of the foregoing are
inapplicable, duly completed and signed copies of such form, if any, as entitles
such Bank to exemption from withholding of United States federal income taxes to
the maximum extent to which such Bank is then entitled under Applicable Law, and
(ii) from time to time thereafter, prior to the expiration or obsolescence of
any previously delivered form or upon any previously delivered form becoming
inaccurate or inapplicable, such further duly completed and signed copies of
such form, if any, as entitles such Bank to exemption from withholding of United
States federal income taxes to the maximum extent to which such Bank is then
entitled under Applicable Law; provided, however, that if a form provided by a
Bank at the time such Bank first becomes a party to this Agreement indicates a
United States withholding tax in excess of zero, withholding tax at such rate
shall be considered excluded from Taxes and provided further that if a Bank is
not eligible to provide a form at the time such Bank first becomes a party to
this Agreement, withholding tax at the full applicable statutory rate shall be
considered excluded from Taxes. Each Bank shall promptly notify the Borrower and
the Administrative Agent if (A) it is required to withdraw or cancel any form or
certificate previously submitted by it or any such form or certificate has
otherwise become ineffective or inaccurate or (B) payments to it are or will be
subject to withholding of United States federal income taxes to a greater extent
than the extent to which payments to it were previously subject. Upon the
request of the Borrower or the Administrative Agent, each Bank that is a United
States Person shall from time to time submit to the Borrower and the
Administrative Agent a certificate to the effect that it is such a United States
Person and a duly completed Internal Revenue Service Form W-9.
(f) Authorization to Charge Accounts. The Borrower hereby authorizes
the Administrative Agent and each Bank, if and to the extent any amount payable
by the Borrower under the Loan Documents (whether payable to such Person or to
any other Person that is the Administrative Agent or a Bank) is not otherwise
paid when due, to charge such amount against any or all of the accounts of the
Borrower with such Person or any of its Affiliates (whether maintained at a
branch or office located within or without the United States), with the Borrower
remaining liable for any deficiency.
(g) Extension of Payment Dates. Whenever any payment to the
Administrative Agent or any Bank under the Loan Documents would otherwise be due
(except by reason of acceleration) on a day that is not a Business Day, or, in
the case of payments of the principal of Eurodollar Rate Loans, a Eurodollar
Business Day, such payment shall instead be due on the next succeeding Business
or Eurodollar Business Day, as the case may be, unless, in the case of a payment
of the principal of Eurodollar Rate Loans, such extension would cause payment to
be due in the next succeeding calendar month, in which case such due date shall
be advanced to the next preceding Eurodollar Business Day. If the date any
payment under the Loan Documents is
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due is extended (whether by operation of this Section 1.11(g), any Loan
Document, Applicable Law or otherwise), such payment shall bear interest for
such extended time at the rate of interest applicable hereunder.
Section 1.12. Distribution of Payments by the Administrative Agent. (a) The
Administrative Agent shall promptly distribute to each Bank its ratable share of
each payment received by the Administrative Agent under the Loan Documents for
the account of the Banks by credit to an account of such Bank at the
Administrative Agent's Office or by wire transfer to an account of such Bank at
an office of any other commercial bank located in the United States.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior 11:00 a.m. on to the date on which any payment is due to the
Banks under the Loan Documents that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent in its sole discretion may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date a corresponding amount with respect to
the amount then due such Bank. If and to the extent the Borrower shall not have
so made such payment in full to the Administrative Agent and the Administrative
Agent shall have so distributed to any Bank a corresponding amount, such Bank
shall, on demand, repay to the Administrative Agent the amount so distributed
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate until (and including) the third
Business Day after demand is made and thereafter at the Base Rate.
Section 1.13. Pro Rata Treatment. Except to the extent otherwise provided
herein, (a) Loans of each Type to be made on any day shall be made by the Banks
pro rata in accordance with their respective Commitments, (b) Loans of the Banks
shall be converted and continued pro rata in accordance with their respective
amounts of Loans of the Type and, in the case of Eurodollar Rate Loans, having
the Interest Period being so converted or continued, (c) each reduction in the
Commitments shall be made pro rata in accordance with the respective amounts
thereof and (d) each payment of the principal of or interest on the Loans or of
fees shall be made for the account of the Banks pro rata in accordance with the
respective amounts thereof then due and payable.
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01. Conditions to Initial Loans. The obligation of each Bank to
make its initial Loan is subject to the determination of each Bank, in its sole
and absolute discretion, that each of the following conditions has been
fulfilled:
(a) the Administrative Agent shall have received each of the following,
in form and substance and, in the case of the materials referred to in clauses
(i), (ii), (iii) and (vi), certified in a manner satisfactory to the
Administrative Agent:
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(i) a certificate of the secretary or an assistant secretary
of the Borrower, dated the requested date for the making of such Loan,
substantially in the form of Schedule 2.01(a)(i), to which shall be
attached copies of the resolutions and by-laws referred to in such
certificate;
(ii) a copy of the certificate of incorporation of the
Borrower, certified, as of a recent date, by the Secretary of State or
other appropriate official of the Borrower's jurisdiction of
incorporation;
(iii) a good standing certificate with respect to the
Borrower, issued as of a recent date by the Secretary of State or other
appropriate official of such Person's jurisdiction of incorporation;
(iv) an opinion of the General Counsel for the Borrower, dated
the requested date for the making of such Loan, as to such matters as
the Banks may reasonably request;
(v) an opinion of counsel for the Administrative Agent, dated
the requested date for the making of such Loan, as to the
enforceability of the Loan Documents;
(vi) a certificate in the form of Schedule 2.01(a)(vi), with
such changes as the Administrative Agent shall approve;
(vii) a duly executed Note for each Bank;
(viii) evidence that fees payable on or prior to the requested
date of such Loan pursuant to Section 1.08, and all amounts payable
pursuant to Section 9.02 for which invoices have been delivered to the
Borrower on or prior to such date, have been paid in full or will be
paid in full concurrently with the disbursement of the proceeds of the
Loans to be made on such date; and
(ix) such additional materials as any Bank may have requested
pursuant to Section 5.01(g);
(b) all fees payable on or prior to the requested date of such Loan
pursuant to Section 1.08, and all amounts payable pursuant to Section 9.02 for
which invoices have been delivered to the Borrower on or prior to such date,
shall have been paid in full or arrangements satisfactory to the Administrative
Agent shall have been made to cause them to be paid in full concurrently with
the disbursement of the proceeds of the Loans to be made on such date.
Section 2.02. Conditions to Each Loan. The obligation of each Bank to make
each Loan requested to be made by it, including its initial Loan, is subject to
each of the following conditions being fulfilled:
(a) the Administrative Agent shall have received a notice of borrowing
with respect to such Loan complying with the requirements of Section 1.02;
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(b) each Representation and Warranty shall be true and correct at and
as of the time such Loan is to be made, both with and without giving effect to
such Loan and all other Loans to be made at such time and to the application of
the proceeds thereof;
(c) no Default shall have occurred and be continuing at the time such
Loan is to be made or would result from the making of such Loan and all other
Loans to be made at such time or from the application of the proceeds thereof;
(d) such Bank shall have received such Information as it may have
requested pursuant to Section 5.01(g);
(e) such Loan will not contravene any Applicable Law applicable to such
Bank; and
(f) no Change of Control shall be deemed to have occurred.
Except to the extent that the Borrower shall have disclosed in the
notice of borrowing, or in a subsequent notice given to the Banks prior to 5:00
p.m. on the Business Day before the requested date for the making of the
requested Loans, that a condition specified in clause (b) or (c) above will not
be fulfilled as of the requested time for the making of such Loans, the Borrower
shall be deemed to have made a Representation and Warranty as of the time of the
making of such Loans that the conditions specified in such clauses have been
fulfilled as of such time. No such disclosure by the Borrower that a condition
specified in clause (b) or (c) above will not be fulfilled as of the requested
time for the making of the requested Loans shall affect the right of each Bank
to not make the Loans requested to be made by it if, in such Bank's
determination, such condition has not been fulfilled at such time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
In order to induce each Bank to enter into this Agreement and to make
each Loan requested to be made by it, the Borrower represents and warrants as
follows:
Section 3.01. Organization; Power; Qualification. The Borrower and each
Subsidiary are corporations duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation, have
the corporate power and authority to own their respective properties and to
carry on their respective businesses as now being and hereafter proposed to be
conducted and are duly qualified and in good standing as foreign corporations,
and are authorized to do business, in all jurisdictions in which the character
of their respective properties or the nature of their respective businesses
requires such qualification or authorization, except for failures in respect of
any of the foregoing which, singly or in the aggregate, have not had and will
not have a Materially Adverse Effect on (x) the Borrower and the Consolidated
Subsidiaries taken as a whole or (y) any Loan Document.
Section 3.02. Subsidiaries. Schedule 3.02 sets forth, as of the Agreement
Date, all of the Subsidiaries, their jurisdictions of incorporation and the
percentages of the various classes of
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their Capital Securities owned by the Borrower or another Subsidiary and
indicates which Subsidiaries are Consolidated Subsidiaries. The Borrower or
another Subsidiary, as the case may be, has the unrestricted right to vote, and
(subject to limitations imposed by Applicable Law) to receive dividends and
distributions on, all Capital Securities indicated on Schedule 3.02 as owned by
the Borrower or such Subsidiary. Except as provided on Schedule 3.02, all such
Capital Securities have been duly authorized and issued and are fully paid and
nonassessable.
Section 3.03. Authorization; Enforceability; Required Consents; Absence of
Conflicts. The Borrower has the power, and has taken all necessary action
(including, if a corporation, any necessary stockholder action) to authorize it,
to execute, deliver and perform in accordance with their respective terms the
Loan Documents and to borrow hereunder in the unused amount of the Commitments.
This Agreement has been, and each of the other Loan Documents when delivered to
the Administrative Agent will have been, duly executed and delivered by the
Borrower and is, or when so delivered will be, a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally. The execution, delivery and performance in
accordance with their respective terms by the Borrower of the Loan Documents,
and each borrowing hereunder, whether or not in the amount of the unused
Commitments, do not and (absent any change in any Applicable Law or applicable
Contract) will not (a) require any Governmental Approval or any other consent or
approval, including any consent or approval of the stockholders of the Borrower
or any Subsidiary, to have been obtained or any Governmental Registration to
have been made, or (b) violate, conflict with, result in a breach of, constitute
a default under, or result in or require the creation of any Lien upon any
assets of the Borrower or any Material Subsidiary under, (i) any Contract to
which the Borrower or such Subsidiary is a party or by which the Borrower or
such Subsidiary or any of their respective properties may be bound or (ii) any
Applicable Law.
Section 3.04. Taxes. The Borrower, each Material Subsidiary and each
Domestic Subsidiary have (a) filed all Tax returns required to have been filed
by it under Applicable Law, (b) paid all Taxes that are due and payable by it or
have been assessed against it except for Taxes the failure to have paid which
does not contravene Section 4.04 and (c) to the extent required by generally
accepted accounting principles, reserved against all Taxes that are payable by
it but are not yet due or that are due and payable by it or have been assessed
against it but have not yet been paid except for failures in respect of any of
the foregoing which, singly or in the aggregate, have not had and will not have
a Materially Adverse Effect on (x) the Borrower and the Consolidated
Subsidiaries taken as a whole or (y) any Loan Document.
Section 3.05. Litigation. There are not, in any court or before any
arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits or proceedings pending or threatened (nor, to the
knowledge of the Borrower and its Subsidiaries, is there any basis therefor)
against or in any other way relating to or affecting (a) the Borrower or any
Subsidiary or any of their respective businesses or properties or (b) any Loan
Document, except actions, suits or proceedings that, if adversely determined,
would not, singly or in the aggregate, have a Materially Adverse Effect on (x)
the Borrower and the Consolidated Subsidiaries taken as a whole or (y) any Loan
Document.
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Section 3.06. Burdensome Provisions. Neither the Borrower nor any
Subsidiary is a party to or bound by any Contract or Applicable Law, compliance
with which might have a Materially Adverse Effect on (a) the Borrower and the
Consolidated Subsidiaries taken as a whole or (b) any Loan Document.
Section 3.07. No Adverse Change or Event. Since December 31, 1999, no
change in the business, assets, Liabilities, financial condition, results of
operations or business prospects of the Borrower or any Subsidiary has occurred,
and no event has occurred or failed to occur, that has had or might have, either
alone or in conjunction with all other such changes, events and failures, a
Materially Adverse Effect on (a) the Borrower and the Consolidated Subsidiaries
taken as a whole or (b) any Loan Document. Such an adverse change may have
occurred, and such an event may have occurred or failed to occur, at any
particular time notwithstanding the fact that at such time no Default shall have
occurred and be continuing.
Section 3.08. Additional Adverse Facts. No fact or circumstance is known to
the Borrower, as of the Agreement Date, that, either alone or in conjunction
with all other such facts and circumstances, has had or might have (so far as
the Borrower and its Subsidiaries can foresee) a Materially Adverse Effect on
(a) the Borrower and the Consolidated Subsidiaries taken as a whole or (b) any
Loan Document. If a fact or circumstance disclosed on the Schedules hereto
should in the future have a Materially Adverse Effect on (x) the Borrower and
the Consolidated Subsidiaries taken as a whole or (y) any Loan Document, such
Materially Adverse Effect shall be a change or event subject to Section 3.07
notwithstanding such disclosure.
Section 3.09. Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a Person "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940.
Section 3.10. Pari Passu Status. The Loans and other obligations of the
Borrower to the Banks under the Loan Documents will at all times rank at least
pari passu in priority of payment with all of the Borrower's other unsecured
Indebtedness.
ARTICLE 4
CERTAIN COVENANTS
From the Agreement Date and until the Repayment Date,
A. The Borrower shall and shall cause each Subsidiary to:
Section 4.01. Preservation of Existence. Preserve and maintain its
corporate existence, except that this Section 4.01 shall not apply to
termination of its corporate existence pursuant to a merger or consolidation to
which Section 4.13 does not apply or to the termination of the corporate
existence of any Subsidiary that is not a Material Subsidiary.
Section 4.02. Preservation of Rights and Properties. (a) Preserve and
maintain all of its franchises, licenses, rights and privileges under Contract
and Applicable Law material to the
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proper conduct of its business; and (b) preserve and maintain in good repair,
working order and condition, excepting ordinary wear and tear and damage due to
casualty, all of its tangible property material to the proper conduct of its
business.
Section 4.03. Business Activities. Engage only in businesses in
substantially the same fields as the businesses conducted by the Borrower and
its Subsidiaries on the Agreement Date.
Section 4.04. Payment of Taxes and Liabilities. Pay or discharge before
they become delinquent all Taxes and all Liabilities that are or might become
Liens on any of its properties, except that this Section 4.04 shall not apply to
Taxes and Liabilities that are being contested in good faith by appropriate
proceedings and for which adequate reserves, in an amount not less than the
amount required by Generally Accepted Accounting Principles, have been provided.
Section 4.05. Compliance With Applicable Laws and Contracts. Comply with
all Applicable Laws and the terms of all Contracts to which it is a party or by
which it or any of its properties may be bound, except that this Section 4.05
shall not apply to any non-compliance that (a) has been excused or expressly
waived under the relative Applicable Law or Contract or (b) either alone or when
aggregated with all other such non-compliances, would not have a Materially
Adverse Effect on the Borrower and its Consolidated Subsidiaries taken as a
whole.
Section 4.06. Preservation of Loan Document Enforceability. Take all
actions (including obtaining or making, as the case may be, and maintaining in
full force and effect all consents and Governmental Approvals and Governmental
Registrations) that are required so that its obligations under the Loan
Documents will at all times be legal, valid and binding and enforceable in
accordance with their respective terms.
Section 4.07. Insurance. Maintain insurance with responsible insurance
companies against at least such risks and in at least such amounts as is
customarily maintained by similar businesses, or as may be required by
Applicable Law.
Section 4.08. Use of Proceeds. Use the proceeds of the Loans only for
general corporate purposes. None of the proceeds of any of the Loans shall be
used to purchase or carry, or to reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the meaning of
Regulation U and Regulation X) or to extend credit to others for the purpose of
purchasing or carrying any margin stock. If requested by any Bank, the Borrower
shall complete and sign Part I of a copy of Federal Reserve Form U-1 referred to
in Regulation U and deliver such copy to such Bank.
B. The Borrower shall not, and shall not permit any Subsidiary to,
directly or indirectly:
Section 4.09. Indebtedness. Have any Indebtedness, at any time, except that
this Section 4.09 shall not apply to (a) the Loans and (b) other Indebtedness
provided that both prior to, and after giving effect to, the incurrence of such
Indebtedness no Default would exist.
Section 4.10. Guaranties. Be obligated, at any time, in respect of any
Guaranty, except that this Section 4.10 shall not apply to (a) Existing
Guaranties and (b) Permitted Guaranties.
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Section 4.11. Liens. Permit to exist, at any time, any Lien upon any of its
properties or assets of any character, whether now owned or hereafter acquired,
or upon any income or profits therefrom, except that this Section 4.11 shall not
apply to Permitted Liens, provided, however, that if, notwithstanding this
Section 4.11, any Lien to which this Section is applicable shall be created or
arise, the Liabilities of the Borrower under the Loan Documents shall
automatically be secured by such Lien equally and ratably with the other
Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected, provided further, however, that
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a Default by the Borrower in the performance or
observance of this Section 4.11.
Section 4.12. Restricted Payments. Make or declare or otherwise become
obligated to make any Restricted Payment, except that this Section 4.12 shall
not apply to any Restricted Payment if at both the time of the declaration or
other incurrence of the obligation to make such Restricted Payment, if any, and
the time of the making thereof, and immediately after giving effect thereto, a
Default would not exist. This Section 4.12 shall not prohibit the payment of a
dividend that constitutes a Restricted Payment if such Restricted Payment is
made within 45 days of the declaration thereof and if this Section 4.12 did not
apply to such Restricted Payment at the time of its declaration.
Section 4.13. Merger or Consolidation. Merge or consolidate with any
Person, except that, if after giving effect thereto no Default would exist, this
Section 4.13 shall not apply to (a) any merger or consolidation of the Borrower
with any one or more Persons, provided that the Borrower shall be the continuing
Person, and (b) any merger or consolidation of any Subsidiary with any one or
more other Subsidiaries, provided that, if either such Subsidiary is a Wholly
Owned Subsidiary, the continuing Person shall, after giving effect to such
merger or consolidation, be a Wholly Owned Subsidiary.
Section 4.14. Disposition of Assets. Sell, lease, license, transfer or
otherwise dispose of, in a single transaction or a series of transactions, all
or a substantial portion of the assets of (i) the Borrower, (ii) RGA Re, (iii)
RGA Canada or (iv) RCM.
Section 4.15. Taxes of Other Persons. (a) File a consolidated tax return
with any other Person other than, in the case of the Borrower, a Consolidated
Subsidiary and, in the case of any such Subsidiary, the Borrower or a
Consolidated Subsidiary, or (b) except as required by Applicable Law, pay or
enter into any Contract (except for reimbursements of Taxes to ceding insurance
or reinsurance companies pursuant to expense reimbursement clauses which are
accepted as standard industry practice and are entered into in the normal course
of business) to pay any Taxes owing by any Person other than the Borrower or a
Consolidated Subsidiary.
Section 4.16. Benefit Plans. (a) Have, or permit any of its ERISA
Affiliates to have, any Benefit Plan other than an Existing Benefit Plan; (b)
permit any Existing Benefit Plan to be amended in any manner that would cause
the aggregate Unfunded Benefit Liabilities under all Existing Benefit Plans to
exceed $10,000,000; or (c) permit any Existing Benefit Plan to have a Funded
Current Liability Percentage of less than 60%.
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Section 4.17. Transactions with Affiliates. Effect any transaction with any
Affiliate that is (a) outside the ordinary course of business and not otherwise
explicitly permitted under the Loan Documents or (b) on a basis less favorable
than would at the time be obtainable for a comparable transaction in
arm's-length dealing with an unrelated third party.
Section 4.18. Limitation on Restrictive Covenants. Permit to exist, at any
time, any consensual restriction limiting the ability (whether by covenant,
event of default, subordination or otherwise) of any Material Subsidiary to (a)
pay dividends or make any other distributions on shares of its capital stock
held by the Borrower or any other Subsidiary, (b) pay any obligation owed to the
Borrower or any other Subsidiary, (c) make any loans or advances to or
investments in the Borrower or in any other Subsidiary, (d) transfer any of its
property or assets to the Borrower or any other Subsidiary or (e) create any
Lien upon its property or assets whether now owned or hereafter acquired or upon
any income or profits therefrom, except that this Section 4.18 shall not apply
to Permitted Restrictive Covenants.
Section 4.19. Issuance or Disposition of Capital Securities. Issue any of
its Capital Securities or sell, transfer or otherwise dispose of any Capital
Securities of any Subsidiary, except that this Section 4.19 shall not apply to
(a) any issuance by the Borrower of any of its Capital Securities, (b) any
issuance by a Subsidiary of any of its Capital Securities to the Borrower or a
Wholly Owned Subsidiary, (c) any issuance by a Subsidiary of any of its Capital
Securities to the holders of the common stock of such Subsidiary made pro rata
to the relative amounts of such common stock held by such holders, (d) any
disposition by the Borrower or any Subsidiary of any Capital Securities of a
Subsidiary to the Borrower or a Wholly Owned Subsidiary and (e) any issuance by
a Subsidiary that is not a Material Subsidiary of less than 50% of its Capital
Securities.
Section 4.20. Acquisitions. Acquire any business or property from, or
Capital Security (other than any Capital Security of a Subsidiary) of, or be a
party to any acquisition of, any Person except that this Section 4.20 shall not
apply to (i) purchases or acquisitions of any Person or any property of any
Person to the extent that the aggregate purchase price of any particular such
purchase or acquisition, or group or series of related purchases or acquisitions
shall not exceed 25%, and the aggregate purchase price for such purchase or
acquisition, or group or series of related purchases or acquisitions together
with all other purchases or acquisitions pursuant to this Section 4.20 shall not
exceed 35%, of the Consolidated Net Worth of the Borrower immediately prior to
such purchase or acquisition or (ii) purchases or acquisitions of specified
groups or blocks of insurance policies from other insurance companies in
transactions not involving the acquisition of the Capital Securities of such
other insurance companies.
C. The Borrower shall not:
Section 4.21. Ratio of Consolidated Indebtedness to Consolidated Net Worth.
Permit Consolidated Indebtedness to exceed 35% of the sum of (a) Consolidated
Indebtedness and (b) Consolidated Net Worth at any time.
Section 4.22. Statutory Surplus. Permit the combined Surplus of RCM and RGA
Canada to be less than 80% of the sum of (a) the combined Surplus of RGA Re and
RGA Canada at December 31, 1999 and (b) the sum of any contribution made to the
capital or surplus
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of RGA Canada after December 31, 1999 and the greater of (i) any contributions
made to the capital or surplus of RGA Re and (ii) any contributions made to the
capital or surplus of RCM, in each case, after December 31, 1999; provided,
however, if RGA Canada becomes a Wholly Owned Subsidiary of an Insurance Company
(which is a Wholly Owned Subsidiary of the Borrower), the Borrower and the
Administrative Agent agree to enter into discussions with a view toward amending
this Section 4.22 so as to equitably reflect such change with the desired result
that the criteria for evaluating the financial condition of the Borrower under
this Section 4.22 shall be the same after such change as if such change had not
been made.
Section 4.23. Minimum Total Adjusted Capital. Permit the Total Adjusted
Capital of each U.S.-domiciled Insurance Company that is a Subsidiary at any
time to be less than 175% of the Company Action Level Risk Based Capital for
such Insurance Company.
ARTICLE 5
INFORMATION
Section 5.01. Information to Be Furnished. From the Agreement Date and
until the Repayment Date, the Borrower shall furnish to each Bank (directly or
by providing sufficient copies of such Information to the Administrative Agent):
(a) Quarterly Financial Statements. As soon as available and in any
event within 60 days after the close of each of the first three quarterly
accounting periods in each fiscal year of the Borrower, commencing with the
quarterly period ended March 31, 2000, unaudited consolidated and consolidating
balance sheets of the Borrower and the Consolidated Subsidiaries as at the end
of such quarterly period and the related unaudited consolidated and
consolidating statements of income, retained earnings and consolidated cash
flows of the Borrower and the Consolidated Subsidiaries in accordance with
Generally Accepted Accounting Principles for such quarterly period (except in
the case of the statement of cash flows) and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, setting forth in
each case in comparative form the figures for the corresponding periods of the
previous fiscal year.
(b) Year-End Financial Statements. As soon as available and in any
event within 90 days after the end of each fiscal year of the Borrower,
commencing with the fiscal year ending December 31, 2000, (i) audited
consolidated statements of income, retained earnings and changes in financial
position (or statement of cash flow, as the case may be) of the Borrower and its
Consolidated Subsidiaries, for such year and the related audited consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries, as at the end
of such year, setting forth in each case in comparative form the corresponding
consolidated figures and figures of the Borrower for the preceding fiscal year
of the Borrower and (ii) an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that said
consolidated financial statements fairly present in all material respects the
consolidated financial condition and results of operations of the Borrower and
its Consolidated Subsidiaries in accordance with Generally Accepted Accounting
Principles, as at the end of, and for, such fiscal year.
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(c) Officer's Certificate as to Financial Statements and Defaults. At
the time that financial statements are furnished pursuant to Section 5.01(a) or
5.01(b), a certificate of the president or chief financial officer of the
Borrower (i) certifying as to the correctness of the representations and
warranties with respect to such financial statements set forth in Section
5.02(b), (ii) setting forth any changes in and departures from Generally
Accepted Accounting Principles, (iii) setting forth the calculations required to
establish whether or not the Borrower was in compliance with Sections 4.21,
4.22, and 4.23, (iv) specifying the Subsidiaries that are, or shall be deemed to
be, Material Subsidiaries in accordance with the definition thereof and (v)
certifying that, based on an examination sufficient to enable the certifying
officer to make an informed statement, no Default exists or, if a Default does
exist, specifying the same by Section, giving the date the same occurred and the
steps being taken by the Borrower or a Subsidiary with respect thereto.
(d) Statutory Statements. As soon as available and in any event no
later than the later of (i) 60 days after the close of each of the applicable
accounting periods for which such Insurance Company is required to prepare and
file Statutory Statements (other than the period ending on the last day of a
fiscal year), commencing with any such period ending on or after March 31, 2000
and (ii) the time such Statutory Statements of the Insurance Companies are filed
with the appropriate regulatory authorities, unaudited summary Statutory
Statements (prepared in accordance with SAP) of RGA Re, RGA Canada, RCM and any
other Insurance Company requested by a Bank (comparable from fiscal period to
fiscal period) for each such fiscal period, accompanied by a certificate of the
president or chief financial officer of the Borrower, which certificate shall
state that such financial statements present the financial condition of such
Insurance Companies in accordance with SAP.
(e) Year-End Statutory Statements. As soon as available and in any
event no later than the later of (i) 90 days after the end of each fiscal year
of the Borrower commencing with the fiscal year ending December 31, 2000 and
(ii) the time the same are filed with the appropriate regulatory authorities,
the unaudited and audited annual Statutory Statement of RGA Re, RGA Canada, RCM
and such other Insurance Companies as requested by a Bank (prepared in
accordance with SAP) for such year and as filed with the insurance department of
the applicable jurisdiction, accompanied by (i) a certificate of the president
or chief financial officer of the Borrower stating that said Statutory Statement
presents the financial condition of such Insurance Company in accordance with
SAP and (ii) a certificate of the valuation actuary of such Insurance Company,
affirming the adequacy of reserves taken by such Insurance Company as at the end
of such fiscal year.
(f) Reports and Filings. (i) Promptly upon receipt thereof, copies of
all reports, if any, submitted to the Borrower or any Material Subsidiary, or
the Board of Directors of the Borrower or any Material Subsidiary, by its
independent certified public accountants, including any management letter; (ii)
as soon as practicable, copies of all such financial statements and reports as
the Borrower or any Subsidiary shall send to its stockholders and of all
registration statements and all regular or periodic reports that the Borrower or
any Subsidiary shall file, or may be required to file, with the Securities and
Exchange Commission or any successor commission.
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(g) Requested Information. From time to time and promptly upon
reasonable request of any Bank, such Information regarding the Loan Documents,
the Loans or the business, assets, Liabilities, financial condition, results of
operations or business prospects of the Borrower and the Subsidiaries as such
Bank may request, in each case in form and substance and certified in a manner
reasonably satisfactory to the requesting Bank.
(h) Notice of Defaults, Material Adverse Changes and Other Matters.
Prompt notice of:
(i) any Default,
(ii) the threatening or commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained
in Section 3.05 to be incorrect if made at such time,
(iii) the occurrence or nonoccurrence of any change or event
that would cause the Representation and Warranty contained in Section
3.07 to be incorrect if made at such time,
(iv) any reduction in the rating given by any nationally
recognized rating agency to any securities issued by the Borrower or
any of its Subsidiaries (including any change in the S&P Rating or the
Moody's Rating),
(v) any event or condition referred to in clauses (i) through
(vii) of Section 6.01(h), whether or not such event or condition shall
constitute an Event of Default, and
(vi) any Change of Control being deemed to have occurred.
Section 5.02. Accuracy of Financial Statements and Information. (a)
Historical Financial Statements. The Borrower hereby represents and warrants
that (i) Schedule 5.02(a) sets forth a complete and correct list of the
financial statements submitted by the Borrower to the Banks in order to induce
them to execute and deliver this Agreement, (ii) such financial statements are
complete and correct and present fairly, in accordance with Generally Accepted
Accounting Principles or SAP, as applicable, the consolidated and, in the case
of any such financial statements prepared in accordance with Generally Accepted
Accounting Principles, the consolidating financial position of the Borrower
and/or the Consolidated Subsidiaries as at their respective dates and the
consolidated and, in the case of any such financial statements prepared in
accordance with Generally Accepted Accounting Principles, the consolidating
results of operations, retained earnings and, as applicable, changes in
financial position or cash flows of the Borrower and/or such Subsidiaries for
the respective periods to which such statements relate, and (iii) except as
disclosed or reflected in such financial statements, as at December 31, 1999,
neither the Borrower nor any Subsidiary had any Liability, contingent or
otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, has had or might have a Materially Adverse Effect on the Borrower and
the Consolidated Subsidiaries taken as a whole.
(b) Future Financial Statements. The financial statements delivered
pursuant to Section 5.01(a), (b), (d) and (e) shall be complete and correct and
present fairly, in accordance
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with Generally Accepted Accounting Principles (except for changes therein or
departures therefrom that are described in the certificate or report
accompanying such statements and that have been approved in writing by the
Borrower's then current independent certified public accountants) or SAP, as
applicable, the consolidated and, in the case of any such financial statements
prepared in accordance with Generally Accepted Accounting Principles, the
consolidating financial position of the Borrower and/or the Consolidated
Subsidiaries, as applicable, as at their respective dates and the consolidated
and, in the case of any such financial statements prepared in accordance with
Generally Accepted Accounting Principles, the consolidating results of
operations, retained earnings and cash flows of the Borrower and/or such
Subsidiaries, as applicable, for the respective periods to which such statements
relate, and the furnishing of the same to the Banks shall constitute a
representation and warranty by the Borrower made on the date the same are
furnished to the Banks to that effect and to the further effect that, except as
disclosed or reflected in such financial statements, as at the respective dates
thereof, neither the Borrower nor any Subsidiary had any Liability, contingent
or otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, has had or might have a Materially Adverse Effect on the Borrower and
the Consolidated Subsidiaries taken as a whole.
(c) Historical Information. The Borrower hereby represents and warrants
that all Information furnished to the Administrative Agent or the Banks by or on
behalf of the Borrower prior to the Agreement Date in connection with or
pursuant to the Loan Documents and the relationships established thereunder, at
the time the same was so furnished, but in the case of Information dated as of a
prior date, as of such date, (i) in the case of any Information prepared in the
ordinary course of business, was complete and correct in the light of the
purpose prepared, and, in the case of any Information the preparation of which
was requested by any Bank, was complete and correct in all material respects to
the extent necessary to give such Bank true and accurate knowledge of the
subject matter thereof, (ii) did not contain any untrue statement of a material
fact, and (iii) did not omit to state a material fact necessary in order to make
the statements contained therein not misleading in the light of the
circumstances under which they were made.
(d) Future Information. All Information furnished to the Administrative
Agent or the Banks by or on behalf of the Borrower on or after the Agreement
Date in connection with or pursuant to the Loan Documents or in connection with
or pursuant to any amendment or modification of, or waiver of rights under, the
Loan Documents, shall, at the time the same is so furnished, but in the case of
Information dated as of a prior date, as of such date, (i) in the case of any
Information prepared in the ordinary course of business, be complete and correct
in the light of the purpose prepared, and, in the case of any Information
required by the terms of the Loan Documents or the preparation of which was
requested by any Bank, be complete and correct to the extent necessary to give
such Bank true and accurate knowledge of the subject matter thereof, (ii) not
contain any untrue statement of a material fact, and (iii) not omit to state a
material fact necessary in order to make the statements contained therein not
misleading in the light of the circumstances under which they were made, and the
furnishing of the same to the Administrative Agent or any Bank shall constitute
a representation and warranty by the Borrower made on the date the same are so
furnished to the effect specified in clauses (i), (ii) and (iii).
Section 5.03. Additional Covenants Relating to Disclosure. From the
Agreement Date and until the Repayment Date, the Borrower shall and shall cause
each Subsidiary to:
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(a) Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and
complete), as may be required or necessary to permit (i) the preparation of
financial statements required to be delivered pursuant to Section 5.01(a),
5.01(b), 5.01(d) and 5.01(e) and (ii) the determination of the compliance of the
Borrower with the terms of the Loan Documents.
(b) Fiscal Year. Maintain the same opening and closing dates for each
fiscal year as for the fiscal year reflected in the Base Financial Statements
or, if the opening and closing dates for the fiscal year reflected in the Base
Financial Statements were determined pursuant to a formula, determine the
opening and closing dates for each fiscal year pursuant to the same formula.
(c) Visits, Inspections and Discussions. Permit, or, in the case of
premises, property, books, records or Persons not within its immediate control,
promptly take such actions as are necessary or desirable in order to permit,
representatives (whether or not officers or employees) of any Bank, from time to
time, upon reasonable written notice (with such Bank responsible for its own
out-of-pocket expenses) as often as may be reasonably requested, during normal
business hours to (i) visit any of its premises or property or any premises or
property of others on which any of its property or books and records (or books
and records of others relating to it) may be located, (ii) inspect, and verify
the amount, character and condition of, any of its property, (iii) review and
make extracts from its books and records and books and records of others
relating to it, including management letters prepared by its independent
certified public accountants, and (iv) discuss with any Person (including its
principal officers, independent certified public accountants, suppliers,
customers, debtors and other creditors) its business, assets, Liabilities,
financial condition, results of operation and business prospects. The Agent and
each Bank agree to keep confidential, in accordance with its customary
procedures for handling confidential information of the same nature, any
non-public information supplied to it by or on behalf of the Borrower or any of
its Subsidiaries pursuant to this Section 5.03(c) except that this Section shall
not apply to the disclosure of any such information: (a)(i) to the extent
required by (A) Applicable Law or (B) judicial process or (ii) to any regulatory
authority; (b) to (i) the Agent, any of the Banks or any other party to any of
the Loan Documents; (ii) any of their respective Affiliates, or (iii) any
director, officer, employee or agent, including accountants, legal counsel and
other advisers, of any Person referred to in (i) or (ii) of this clause (b); (c)
to any Person in connection with the exercise by such Bank of its rights under
Section 9.09; (d) in connection with (i) the exercise of any remedy under any
Loan Document or (ii) any action, suit or other proceeding with respect to any
Loan Document or any Loan Document Related Claim, or in anticipation of or
preparation for any such proceeding; (e) that has become publicly available,
otherwise than as a result of a breach by the Agent or such Bank of this
Section; or (f) with the consent of the Borrower; provided that in the case of
any disclosure to any Person referred to in clauses (b)(ii) or (iii) or (c),
such Person has been instructed to keep such information confidential.
Section 5.04. Authorization of Third Parties to Deliver Information and
Discuss Affairs. The Borrower hereby authorizes and directs each Person whose
preparation or delivery to the Administrative Agent or the Banks of any opinion,
report or other Information is a condition or covenant under the Loan Documents
(including under Article 2 or this Article 5) to so prepare or deliver such
Information for the benefit of the Administrative Agent and the Banks.
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The Borrower further authorizes and directs all Persons (a) to furnish to the
Banks any Information regarding the matters referred to in Section 5.01(g) that
any Bank may reasonably request, (b) to permit representatives of any Bank to
make the visits, inspections, reviews and extracts of premises, property, books
and records within their possession and control contemplated by Section 5.03(c)
and (c) to discuss with representatives of any Bank the matters referred to in
Section 5.03(c). The Borrower agrees to promptly execute and deliver from time
to time such further authorizations to effect the purposes of this Section 5.04
as the Administrative Agent or any Bank may reasonably request.
ARTICLE 6
DEFAULT
Section 6.01. Events of Default. Each of the following shall constitute an
Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary, or within or without the control of the Borrower or
any Subsidiary, or be effected by operation of law or pursuant to any judgment
or order of any court or any order, rule or regulation of any governmental or
nongovernmental body:
(a) (i) Any payment of principal of any of the Loans or the Notes shall
not be made when and as due (whether at maturity, by reason of notice of
prepayment or acceleration or otherwise) and in accordance with the terms of
this Agreement and the Notes or (ii) any payment of interest on any of the Loans
or the Notes or of fees or any other amount (other than amounts referred to in
clause (a)(i) of this Section) shall not be made when and as due in accordance
with the terms of this Agreement and the Notes and such default shall continue
unremedied for a period of 3 Business Days;
(b) Any Representation and Warranty shall at any time prove to have
been incorrect or misleading in any material respect when made;
(c) The Borrower shall default in the performance or observance of:
(i) any term, covenant, condition or agreement contained in
Section 4.01 (insofar as such Section requires the preservation of the
corporate existence of the Borrower), 4.03, 4.06, 4.09 through 4.20,
4.22, 4.23, 5.01(h)(i), 5.03(b) or 5.03(c); or
(ii) any term, covenant, condition or agreement contained in
this Agreement (other than a term, covenant, condition or agreement a
default in the performance or observance of which is elsewhere in this
Section specifically dealt with) and, if capable of being remedied,
such default shall continue unremedied for a period of 30 days;
(d) (i) The Borrower or any Subsidiary shall fail to pay, in accordance
with its terms and when due and payable, after giving effect to any applicable
grace period, any of the principal of or interest on any of its Indebtedness
(other than the Loans) having a then outstanding principal amount in the
aggregate in excess of $25,000,000, (ii) the maturity of any such Indebtedness
shall, in whole or in part, have been accelerated, or any such Indebtedness
shall, in whole or in part, have been required to be prepaid or repurchased
prior to the stated
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maturity thereof, in accordance with the provisions of any Contract evidencing,
providing for the creation of or concerning such Indebtedness, or (iii) (A) any
event shall have occurred and be continuing that permits (or, with the passage
of time or the giving of notice or both, would permit) any holder or holders of
such Indebtedness, any trustee or agent acting on behalf of such holder or
holders or any other Person so to accelerate such maturity or require any such
prepayment and (B) if the Contract evidencing, providing for the creation of or
concerning such Indebtedness provides for a cure period for such event, such
event shall not be cured prior to the end of such cure period or such shorter
period of time as the Administrative Agent may specify;
(e) Since December 31, 1999, any change in the business, assets,
Liabilities, financial condition, results of operations or business prospects of
the Borrower or any Subsidiary shall have occurred, or any event shall have
occurred or failed to occur, that has had or might have, either alone or in
conjunction with all other such changes, events and failures, a Materially
Adverse Effect on (i) the Borrower and the Consolidated Subsidiaries taken as a
whole or (ii) any Loan Document;
(f) (i) The Borrower or any Material Subsidiary or any Domestic
Subsidiary shall (A) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (B) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, (C) consent to
or fail to contest within 10 days of the filing of, and in a manner seeking the
dismissal of, a petition filed against it in an involuntary case under such
bankruptcy laws or other laws, (D) apply for, or consent to, or fail to contest
within 10 days of the filing of, and in a manner seeking the dismissal of, the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or the like of itself or of a substantial part of its assets,
domestic or foreign, (E) admit in writing its inability to pay, or generally not
be paying, its debts (other than those that are the subject of bona fide
disputes) as they become due, (F) make a general assignment for the benefit of
creditors, or (G) take any action for the purpose of effecting any of the
foregoing (including the passage by the Board of Directors of the Borrower or
any such Subsidiary of a resolution approving, authorizing or directing any of
the foregoing actions);
(ii) (A) A case or other proceeding shall be commenced against the
Borrower or any Material Subsidiary or any Domestic Subsidiary seeking (1)
relief under the federal bankruptcy laws (as now or hereafter in effect) or
under any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, or (2) the
appointment of a trustee, receiver, custodian, liquidator or the like of the
Borrower or any Subsidiary, or of all or any substantial part of the assets,
domestic or foreign, of the Borrower or any Subsidiary, and such case or
proceeding shall continue undismissed and unstayed for a period of 60 days, or
(B) an order granting the relief requested in such case or proceeding against
the Borrower or any such Subsidiary (including an order for relief under such
federal bankruptcy laws) shall be entered;
(g) A judgment or order shall be entered against the Borrower or any
Material Subsidiary or any Domestic Subsidiary by any court, and (i) in the case
of a judgment or order for the payment of money, either (A) such judgment or
order shall continue undischarged and unstayed for a period of 10 days in which
the aggregate amount of all such judgments and orders exceeds $25,000,000 or (B)
enforcement proceedings shall have been commenced upon such
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judgment or order and (ii) in the case of any judgment or order for other than
the payment of money, such judgment or order could, in the reasonable judgment
of the Required Banks, together with all other such judgments or orders, have a
Materially Adverse Effect on the Borrower and the Consolidated Subsidiaries
taken as a whole;
(h) (i) Any Termination Event shall occur with respect to any Benefit
Plan of the Borrower, any Subsidiary or any of their respective ERISA
Affiliates, (ii) any Accumulated Funding Deficiency, whether or not waived,
shall exist with respect to any such Benefit Plan, (iii) any Person shall engage
in any Prohibited Transaction involving any such Benefit Plan, (iv) the
Borrower, any Subsidiary or any of their respective ERISA Affiliates shall be in
"default" (as defined in ERISA Section 4219(c)(5)) with respect to payments
owing to any such Benefit Plan that is a Multiemployer Benefit Plan as a result
of such Person's complete or partial withdrawal (as described in ERISA Section
4203 or 4205) therefrom, (v) the Borrower, any Subsidiary or any of their
respective ERISA Affiliates shall fail to pay when due an amount that is payable
by it to the PBGC or to any such Benefit Plan under Title IV of ERISA, (vi) a
proceeding shall be instituted by a fiduciary of any such Benefit Plan against
the Borrower, any Subsidiary or any of their respective ERISA Affiliates to
enforce ERISA Section 515 and such proceeding shall not have been dismissed
within 30 days thereafter, or (vii) any other event or condition shall occur or
exist with respect to any such Benefit Plan, except that no event or condition
referred to in clauses (i) through (vii) shall constitute an Event of Default if
it, together with all other such events or conditions at the time existing, has
not subjected, and in the reasonable determination of the Required Banks will
not subject, the Borrower or any Subsidiary to any Liability that, alone or in
the aggregate with all such Liabilities for all such Persons, exceeds
$10,000,000;
(i) The Borrower or any of its Affiliates asserts, or the Borrower or
any of its Affiliates or any other Person institutes any proceedings seeking to
establish, that (i) any provision of the Loan Documents is invalid, not binding
or unenforceable;
(j) (i) Any Applicable Insurance Regulatory Authority shall commence a
case or other proceeding against the Borrower or any Material Subsidiary or any
Domestic Subsidiary seeking the appointment of a trustee, receiver, custodian,
administrator, liquidator or the like of the Borrower or any such Subsidiary, or
of all or any substantial part of the assets, domestic or foreign, of the
Borrower or any such Subsidiary, or an order granting the relief requested in
such case or proceeding against the Borrower or any such Subsidiary shall be
entered or (ii) RGA Canada shall fail to meet the Minimum Continuing Capital and
Surplus requirement as set by the Office of the Superintendent of Financial
Institutions, Canada; or
(k) Either RGA Re, RCM or RGA Canada shall cease to be a Wholly-Owned
Subsidiary of the Borrower.
Section 6.02. Remedies upon Event of Default. During the continuance of any
Event of Default (other than one specified in Section 6.01(f)) and in every such
event, the Administrative Agent, upon notice to the Borrower, may do either or
both of the following: (a) declare, in whole or, from time to time, in part, the
principal of and interest on the Loans and the Notes and all other amounts owing
under the Loan Documents to be, and the Loans and the Notes and all such other
amounts shall thereupon and to that extent become, due and payable and
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(b) terminate, in whole or, from time to time, in part, the Commitments. Upon
the occurrence of an Event of Default specified in Section 6.01(f),
automatically and without any notice to the Borrower, (a) the principal of and
interest on the Loans and the Notes and all other amounts owing under the Loan
Documents shall be due and payable and (b) the Commitments shall terminate.
Presentment, demand, protest or notice of any kind (other than the notice
provided for in the first sentence of this Section 6.02) are hereby expressly
waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate Loans.
A Bank's obligations to make, continue or convert into Eurodollar Rate Loans of
any Type shall be suspended, all such Bank's outstanding Loans of that Type
shall be converted on the last day of their applicable Interest Periods (or, if
earlier, in the case of clause (c) below, on the last day such Bank may lawfully
continue to maintain Loans of that Type or, in the case of clause (d) below, on
the day determined by such Bank to be the last Business Day before the effective
date of the applicable restriction) into, and all pending requests for the
making or continuation of or conversion into Loans of such Type by such Bank
shall be deemed requests for, Base Rate Loans, if:
(a) on or prior to the determination of an interest rate for a
Eurodollar Rate Loan of that Type for any Interest Period, the Administrative
Agent determines that for any reason appropriate information is not available to
it for purposes of determining the Adjusted Eurodollar Rate for such Interest
Period;
(b) on or prior to the first day of any Interest Period for a
Eurodollar Rate Loan of that Type, such Bank determines that the Adjusted
Eurodollar Rate as determined by the Administrative Agent for such Interest
Period would not accurately reflect the cost to such Bank of making, continuing
or converting into a Eurodollar Rate Loan of such Type for such Interest Period;
(c) at any time such Bank determines that any Regulatory Change Enacted
after the Agreement Date makes it unlawful or impracticable for such Bank or its
applicable Lending Office to make, continue or convert into any Eurodollar Rate
Loan of that Type, or to comply with its obligations hereunder in respect
thereof; or
(d) such Bank determines that, by reason of any Regulatory Change
Enacted after the Agreement Date, such Bank or its applicable Lending Office is
restricted, directly or indirectly, in the amount that it may hold of (i) a
category of liabilities that includes deposits by reference to which, or on the
basis of which, the interest rate applicable to Eurodollar Rate Loans of that
Type is directly or indirectly determined or (ii) the category of assets that
includes Eurodollar Rate Loans of that Type.
If, as a result of this Section 7.01, any Loan of any Bank that would otherwise
be made or maintained as or converted into a Eurodollar Rate Loan of any Type
for any Interest Period is instead made or maintained as or converted into a
Base Rate Loan, then, unless the
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corresponding Loan of each of the other Banks is also to be made or maintained
as or converted into a Base Rate Loan, such Loan shall be treated as being a
Eurodollar Rate Loan of such Type for such Interest Period for all purposes of
this Agreement (including the timing, application and proration among the Banks
of interest payments, conversions and prepayments) except for the calculation of
the interest rate borne by such Loan. The Administrative Agent shall promptly
notify the Borrower and each Bank of the existence or occurrence of any
condition or circumstance specified in clause (a) above, and each Bank shall
promptly notify the Borrower and the Administrative Agent of the existence or
occurrence of any condition or circumstance specified in clause (b), (c) or (d)
above applicable to such Bank's Loans, but the failure by the Administrative
Agent or such Bank to give any such notice shall not affect such Bank's rights
hereunder.
Section 7.02. Regulatory Changes. If in the reasonable determination of any
Bank (a) any Regulatory Change Enacted after the Agreement Date shall directly
or indirectly (i) reduce the amount of any sum received or receivable by such
Bank with respect to any Loan or the return to be earned by such Bank on any
Loan, (ii) impose a cost on such Bank or any Affiliate of such Bank that is
attributable to the making, funding or maintaining of, or such Bank's commitment
to make, any Loan, (iii) require such Bank or any Affiliate of such Bank to make
any payment on or calculated by reference to the gross amount of any amount
received by such Bank under any Loan Document or (iv) reduce, or have the effect
of reducing, the rate of return on any capital of such Bank or any Affiliate of
such Bank that such Bank or such Affiliate is required to maintain on account of
any Loan or such Bank's commitment to make any Loan and (b) such reduction,
increased cost or payment shall not be fully compensated for by an adjustment in
the applicable rates of interest payable under the Loan Documents, then the
Borrower shall pay to such Bank such additional amounts as such Bank reasonably
determines will, together with any adjustment in the applicable rates of
interest payable hereunder, fully compensate for such reduction, increased cost
or payment. Such additional amounts shall be payable, in the case of those
applicable to prior periods, within 15 days after request by such Bank for such
payment and, in the case of those applicable to future periods, on the dates
specified, or determined in accordance with a method specified, by such Bank.
Each Bank will promptly notify the Borrower of any determination made by it
referred to in clauses (a) and (b) above, but the failure to give such notice
shall not affect such Bank's right to compensation.
Section 7.03. Capital Requirements. If in the determination of any Bank any
Regulatory Change relating to capital adequacy Enacted after the Agreement Date
requires such Bank, or any Affiliate of such Bank, to maintain capital on
account of any Loan or such Bank's Commitment in a greater amount than such Bank
or such Affiliate would otherwise have maintained on account of such Loan or
Commitment, then, upon request by such Bank, the Borrower shall from time to
time thereafter pay to such Bank such additional amounts as such Bank reasonably
determines will fully compensate for any reduction in the rate of return on the
capital that such Bank or such Affiliate is so required to maintain on account
of such Loan or Commitment. Such additional amounts shall be payable, in the
case of those applicable to prior periods, within 15 days after request by such
Bank for such payment and, in the case of those relating to future periods, on
the dates specified, or determined in accordance with a method specified, by
such Bank.
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Section 7.04. Funding Losses. The Borrower shall pay to each Bank, upon
request, such amount or amounts as such Bank reasonably determines are necessary
to compensate it for any loss, cost or expense incurred by it as a result of (a)
any payment, prepayment or conversion of a Eurodollar Rate Loan on a date other
than the last day of an Interest Period for such Eurodollar Rate Loan or (b) a
Eurodollar Rate Loan for any reason not being made or converted, or any payment
of principal thereof or interest thereon not being made, on the date therefor
determined in accordance with the applicable provisions of this Agreement. At
the election of such Bank, and without limiting the generality of the foregoing,
but without duplication, such compensation on account of losses may include an
amount equal to the excess of (i) the interest that would have been received
from the Borrower under this Agreement on any amounts to be reemployed during an
Interest Period or its remaining portion over (ii) the interest component of the
return that such Bank determines it could have obtained had it placed such
amount on deposit in the interbank Dollar market selected by it for a period
equal to such Interest Period or its remaining portion.
Section 7.05. Certain Determinations. In making the determinations
contemplated by Sections 7.01, 7.02, 7.03, and 7.04, each Bank may make such
estimates, assumptions, allocations and the like that such Bank in good faith
determines to be appropriate, and such Bank's selection thereof in accordance
with this Section 7.05, and the determinations made by such Bank on the basis
thereof, shall be final, binding and conclusive upon the Borrower, except, in
the case of such determinations, for manifest errors in computation or
transmission. Each Bank shall furnish to the Borrower upon request a certificate
outlining in reasonable detail the computation of any amounts claimed by it
under Sections 7.02, 7.03 and 7.04 and the assumptions underlying such
computations.
Section 7.06. Change of Lending Office. If an event occurs with respect
to a Lending Office of any Bank that obligates the Borrower to pay any amount
under Section 1.11(c) or (d), makes operable the provisions of clause (c) or (d)
of Section 7.01 or entitles such Bank to make a claim under Section 7.02 or
7.03, such Bank shall, if requested by the Borrower, use reasonable efforts to
designate another Lending Office or Offices the designation of which will reduce
the amount the Borrower is so obligated to pay, eliminate such operability or
reduce the amount such Bank is so entitled to claim, provided that such
designation would not, in the sole and absolute discretion of such Bank, be
disadvantageous to such Bank in any manner or contrary to such Bank's policies.
Each Bank may at any time and from time to time change any Lending Office and
shall give notice of any such change to the Administrative Agent and the
Borrower. Except in the case of a change in Lending Offices made at the request
of the Borrower, the designation of a new Lending Office by any Bank shall not
obligate the Borrower to pay any amount to such Bank under Section 1.11(c) or
(d), make operable the provisions of clause (c) or (d) of Section 7.01 or
entitle such Bank to make a claim under Section 7.02 or 7.03 if such obligation,
the operability of such clause or such claim results solely from such
designation and not from a Regulatory Change Enacted thereafter.
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ARTICLE 8
THE ADMINISTRATIVE AGENT
Section 8.01. Appointment and Powers. Each Bank hereby irrevocably
appoints and authorizes The Bank of New York, and The Bank of New York hereby
agrees, to act as the agent for such Bank under the Loan Documents with such
powers as are delegated to the Administrative Agent by the terms thereof,
together with such other powers as are reasonably incidental thereto. The
Administrative Agent's duties shall be purely ministerial and it shall have no
duties or responsibilities except those expressly set forth in the Loan
Documents. The Administrative Agent shall not be required under any
circumstances to take any action that, in its judgment, (a) is contrary to any
provision of the Loan Documents or Applicable Law or (b) would expose it to any
Liability or expense against which it has not been indemnified to its
satisfaction. The Administrative Agent shall not, by reason of its serving as
the Administrative Agent, be a trustee or other fiduciary for any Bank.
Section 8.02. Limitation on Administrative Agent's Liability. Neither
the Administrative Agent nor any of its directors, officers, employees or agents
shall be liable or responsible for any action taken or omitted to be taken by it
or them under or in connection with the Loan Documents, except for its or their
own gross negligence, willful misconduct or knowing violations of law. The
Administrative Agent shall not be responsible to any Bank for (a) any recitals,
statements, representations or warranties contained in the Loan Documents or in
any certificate or other document referred to or provided for in, or received by
any of the Banks under, the Loan Documents, (b) the validity, effectiveness or
enforceability of the Loan Documents or any such certificate or other document
or (c) any failure by the Borrower to perform any of its obligations under the
Loan Documents. The Administrative Agent may employ agents and attorneys-in-fact
and shall not be responsible for the negligence or misconduct of any such agents
or attorneys-in-fact so long as the Administrative Agent was not grossly
negligent in selecting or directing such agents or attorneys-in-fact. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including any thereof by telephone, telex, telecopier,
telegram or cable) believed by it to be genuine and correct and to have been
signed or given by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. As to any matters not expressly provided
for by the Loan Documents, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with instructions signed by the Required Banks, and such instructions
of the Required Banks and any action taken or failure to act pursuant thereto
shall be binding on all of the Banks.
Section 8.03. Certain Actions. (a) Defaults. The Administrative Agent
shall not be deemed to have knowledge of the occurrence of a Default (other than
the non-payment to it of principal of or interest on Loans or fees) unless the
Administrative Agent has received notice from a Bank or the Borrower specifying
such Default and stating that such notice is a "Notice of Default". In the event
that the Administrative Agent has knowledge of such a non-payment or receives
such a notice of the occurrence of a Default, the Administrative Agent shall
give prompt notice thereof to the Banks. In the event of any Default, the
Administrative Agent shall (a) in the case of a Default that constitutes an
Event of Default, take either or both of the actions referred
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to in clauses (a) and (b) of the first sentence of Section 6.02 if so directed
by the Required Banks and (b) in the case of any Default, take such other action
with respect to such Default as shall be reasonably directed by the Required
Banks. Unless and until the Administrative Agent shall have received such
directions, in the event of any Default, the Administrative Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of the
Banks.
(b) Change of Control. The Administrative Agent shall not be
deemed to have knowledge that a Change of Control shall be deemed to have
occurred unless the Administrative Agent has received notice from a Bank or the
Borrower specifying such Change of Control. In the event that the Administrative
Agent receives such a notice of the occurrence of a Change of Control, the
Administrative Agent shall give prompt notice thereof to the Banks. No later
than the fifteenth day after such notice is given to the Banks, any Bank may
request, in a notice to the Administrative Agent (a "Repayment Notice"), that
its Loans be repaid and its Commitment be terminated and, on the earlier to
occur of (x) the fifteenth day after notice is given to the Banks by the
Administrative Agent and (y) the date on which the Administrative Agent shall
have received Repayment Notices from Banks constituting the Required Banks, the
Administrative Agent shall take the actions referred to in Section 1.05(b) as so
requested.
Section 8.04. Rights as a Bank. If the Administrative Agent is also a
Bank, the Administrative Agent shall, in its capacity as a Bank, have the same
rights and powers under the Loan Documents as any other Bank and may exercise
the same as though it were not acting as the Administrative Agent, and the term
"Bank" or "Banks" shall include such Person in its individual capacity. Each
Person acting as the Administrative Agent (whether or not such Person is a Bank)
and its Affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Borrower and its Affiliates as if it were not acting
as the Administrative Agent, and such Person and its Affiliates may accept fees
and other consideration from the Borrower and its Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Banks.
Section 8.05. Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower hereunder),
ratably on the basis of the respective principal amounts of the Loans
outstanding made by the Banks (or, if no Loans are at the time outstanding,
ratably on the basis of their respective Commitments), for any and all
Liabilities, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever that may be imposed
on, incurred by or asserted against the Administrative Agent (including the
costs and expenses that the Borrower is obligated to pay hereunder) in any way
relating to or arising out of the Loan Documents or any other documents
contemplated thereby or referred to therein or the transactions contemplated
thereby or the enforcement of any of the terms thereof or of any such other
documents, provided that no Bank shall be liable for any of the foregoing to the
extent (a) they are subject to the indemnity contemplated by the last sentence
of Section 9.09(b) or (b) they arise from gross negligence, willful misconduct
or knowing violations of law by the Administrative Agent.
Section 8.06. Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has made and will continue to make, independently and
without reliance on the
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Administrative Agent or any other Bank, and based on such documents and
information as it deems appropriate, its own credit analysis of the Borrower and
its own decision to enter into the Loan Documents and to take or refrain from
taking any action in connection therewith. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrower of the Loan Documents or any other document referred to or provided for
therein or to inspect the properties or books of the Borrower or any Subsidiary.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by the Administrative Agent under the Loan
Documents, the Administrative Agent shall have no obligation to provide any Bank
with any information concerning the business, status or condition of the
Borrower or any Subsidiary or the Loan Documents that may come into the
possession of the Administrative Agent or any of its Affiliates.
Section 8.07. Resignation of the Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the Banks
and the Borrower. Upon receipt of any such notice of resignation, the Required
Banks may, after consultation with the Borrower, appoint a successor
Administrative Agent. 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's giving of notice of
resignation, then the retiring Administrative Agent may, on behalf of the Banks
and after consultation with the Borrower, appoint a successor Administrative
Agent. Upon the acceptance by any Person of its appointment as a successor
Administrative Agent, such Person shall thereupon succeed to and become vested
with all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations as Administrative Agent under the Loan
Documents. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article 8 shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as the Administrative Agent.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries. (a) Manner of Delivery. All
notices, communications and materials (including all Information) to be given or
delivered pursuant to the Loan Documents shall, except in those cases where
giving notice by telephone is expressly permitted, be given or delivered in
writing (which shall include telecopy transmissions). Notices under Sections
1.02, 1.03(c), 1.05, 1.07 and 6.02 may be by telephone, promptly, in the case of
each such notice, confirmed in writing; provided, however that the failure to
make such written confirmation with respect to any notice under Section 6.02
shall not change the time of the effectiveness of such notice as provided in
Section 9.01(c). In the event of a discrepancy between any telephonic notice and
any written confirmation thereof, such written confirmation shall be deemed the
effective notice except to the extent that the Administrative Agent has acted in
reliance on such telephonic notice.
(b) Addresses. All notices, communications and materials to be
given or delivered pursuant to the Loan Documents shall be given or delivered at
the following respective
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addresses and telecopier and telephone numbers and to the attention of the
following individuals or departments:
(i) if to the Borrower, to it at:
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, MO 63017
Telecopier No.: (636) 736-7160
Telephone No.: (636) 736-7362
Attention: Controller
with a copy to:
Reinsurance Group of America, Incorporated
1370 Timberlake Manor Parkway
Chesterfield, MO 63017
Telecopier No.: (636) 736-7886
Telephone No.: (636) 736-7486
Attention: General Counsel
(ii) if to the Administrative Agent, to it at:
One Wall St. - 18th Floor
New York, NY 10286
Telecopier No.: (212) 635-6365
Telephone No.: (212) 635-4699
Attention: Ramona Washington,
Agency Function Administration
with a copy to:
One Wall St. - 17th Floor
New York, NY 10286
Telecopier No.: (212) 809-9520
Telephone No.: (212) 635-6407
Attention: Benjamin Balkind
(iii) if to any Bank (including in its capacity as
Syndication Agent or Documentation Agent or
Co-Agent) to it at the address or telex ,
telecopier or telephone number and to the
attention of the individual or department,
set forth below such Bank's name under the
heading "Notice Address" on Annex A or, in
the case of a Bank that becomes a Bank
pursuant to an assignment, set forth under
the heading "Notice Address" in the Notice
of Assignment given to the Borrower and the
Administrative Agent with respect to such
assignment;
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or at such other address or telecopier or telephone number or to the attention
of such other individual or department as the party to which such information
pertains may hereafter specify for the purpose in a notice specifically
captioned "Notice of Change of Address" given to (x) if the party to which such
information pertains is the Borrower, the Administrative Agent and each Bank,
(y) if the party to which such information pertains is the Administrative Agent,
the Borrower and each Bank and (z) if the party to which such information
pertains is a Bank, the Borrower and the Administrative Agent.
(c) Effectiveness. Each notice and communication and any
material to be given or delivered pursuant to the Loan Documents shall be deemed
so given or delivered (i) if sent by registered or certified mail, postage
prepaid, return receipt requested, on the third Business Day after such notice,
communication or material, addressed as above provided, is delivered to a United
States post office and a receipt therefor is issued thereby, (ii) if sent by any
other means of physical delivery, when such notice, communication or material is
delivered to the appropriate address as above provided, (iii) if sent by
telecopier, when such notice, communication or material is transmitted to the
appropriate telecopier number as above provided and is received at such number
and (iv) if given by telephone, when communicated to the individual or any
member of the department specified as the individual or department to whose
attention notices, communications and materials are to be given or delivered,
or, in the case of notice by the Administrative Agent to the Borrower under
Section 6.02 given by telephone as above provided, if any individual or any
member of the department to whose attention notices, communications and
materials are to be given or delivered is unavailable at the time, to any other
officer or employee of the Borrower, except that (x) notices of a change of
address, telecopier or telephone number or individual or department to whose
attention notices, communications and materials are to be given or delivered
shall not be deemed given until received and (y) notices, communications and
materials to be given or delivered to the Administrative Agent or any Bank
pursuant to Sections 1.02, 1.03(c), 1.05, 1.07 and 1.12(b) and Article 4 shall
not be deemed given or delivered until received by the officer of the
Administrative Agent or such Bank responsible, at the time, for the
administration of this Agreement.
(d) Reasonable Notice. Any requirement under Applicable Law of
reasonable notice by the Administrative Agent or the Banks to the Borrower of
any event in connection with, or in any way related to, the Loan Documents or
the exercise by the Administrative Agent or the Banks of any of their rights
thereunder shall be met if notice of such event is given to the Borrower in the
manner prescribed above at least 10 days before (i) the date of such event or
(ii) the date after which such event will occur.
Section 9.02. Expenses; Indemnification. Whether or not any Loans are
made hereunder, the Borrower shall:
(a) pay or reimburse the Administrative Agent and each Bank
for all transfer, documentary, stamp and similar taxes, and all recording and
filing fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or the
making of the Loans;
(b) pay or reimburse the Administrative Agent for all costs
and expenses (including fees and disbursements of legal counsel, appraisers,
accountants and other experts
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employed or retained by the Administrative Agent) incurred by the Administrative
Agent in connection with, arising out of, or in any way related to (i) the
negotiation, preparation, execution and delivery of (A) the Loan Documents and
(B) whether or not executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the Loan Documents,
(iii) consulting with respect to any matter in any way arising out of, related
to, or connected with, the Loan Documents, including (A) the protection,
preservation, exercise or enforcement of any of the rights of the Administrative
Agent or the Banks under or related to the Loan Documents or (B) the performance
of any of the obligations of the Administrative Agent or the Banks under or
related to the Loan Documents or (iv) protecting, preserving, exercising or
enforcing any of the rights of the Administrative Agent or the Banks under or
related to the Loan Documents;
(c) pay or reimburse each Bank for all costs and expenses
(including fees and disbursements of legal counsel and other experts employed or
retained by such Bank) incurred by such Bank in connection with, arising out of,
or in any way related to protecting, preserving, exercising or enforcing any of
its rights under or related to the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from
and against all losses (including judgments, penalties and fines) suffered, and
pay or reimburse each Indemnified Person for all costs and expenses (including
fees and disbursements of legal counsel and other experts employed or retained
by such Indemnified Person) incurred, by such Indemnified Person in connection
with, arising out of, or in any way related to (i) any Loan Document Related
Claim (whether asserted by such Indemnified Person or the Borrower or any other
Person), including the prosecution or defense thereof and any litigation or
proceeding with respect thereto (whether or not, in the case of any such
litigation or proceeding, such Indemnified Person is a party thereto), or (ii)
any investigation, governmental or otherwise, arising out of, related to, or in
any way connected with, the Loan Documents or the relationships established
thereunder, except that the foregoing indemnity shall not be applicable to any
loss suffered by any Indemnified Person to the extent such loss is determined by
a judgment of a court that is binding on the Borrower and such Indemnified
Person, final and not subject to review on appeal, to be the result of acts or
omissions on the part of such Indemnified Person constituting (x) gross
negligence, (y) willful misconduct or (z) knowing violations of law.
Section 9.03. Amounts Payable Due upon Request for Payment. All amounts
payable by the Borrower under Section 9.02 and under the other provisions of the
Loan Documents shall, except as otherwise expressly provided, be immediately due
upon request for the payment thereof.
Section 9.04. Remedies of the Essence. The various rights and remedies
of the Administrative Agent and the Banks under the Loan Documents are of the
essence of those agreements, and the Administrative Agent and the Banks shall be
entitled to obtain a decree requiring specific performance of each such right
and remedy.
Section 9.05. Rights Cumulative. Each of the rights and remedies of the
Administrative Agent and the Banks under the Loan Documents shall be in addition
to all of their other rights and remedies under the Loan Documents and
Applicable Law, and nothing in the Loan Documents shall be construed as limiting
any such rights or remedies.
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Section 9.06. Amendments; Waivers. (i) Any term, covenant, agreement or
condition of the Loan Documents may be amended, and any right under the Loan
Documents may be waived, if, but only if, such amendment or waiver is in writing
and is signed by the Required Banks and, if the rights and duties of the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Co-Agent are affected thereby, by such Person and, in the case of an amendment,
by the Borrower; provided, however, that no amendment or waiver shall be
effective, unless in writing and signed by each Bank, to the extent it (1)
changes the amount of such Bank's Commitment, (2) reduces the principal of or
the rate of interest on such Bank's Loans or Note or the fees payable to such
Bank hereunder, (3) postpones any date fixed (otherwise than as a result of a
prepayment pursuant to Section) for any payment of principal of or interest on
such Bank's Loans or Note or the fees payable to such Bank hereunder or (4)
amends Section 1.13, this Section 9.06, the definition of "Required Banks" or
any other provision of this Agreement requiring the consent or other action of
all of the Banks.
(ii) (A) (1) Unless otherwise specified in an amendment
or waiver, an amendment or waiver under the Loan Documents shall be effective
only in the specific instance and for the specific purpose for which given.
(2) By entering into an amendment with, or
giving a waiver under, a section of the Loan Documents, the Banks shall not
be deemed to have, or to have intended to have, (aa) waived any rights that
they, or any of them, then or thereafter may have under any other provisions of
the Loan Documents and (bb) if such amendment or waiver was occasioned by a
particular fact or facts, accepted that fact or those facts for any other
purpose or Section of the Loan Documents, including Section 3.07 of the Credit
Agreement, so that, for purposes of Section 3.07, if such fact or facts has had
or could have, either alone, or together with other facts, a Materially Adverse
Effect, such Materially Adverse Effect shall be a change or event subject to
Section 3.07, notwithstanding such amendment or waiver.
(iii) No election not to exercise, failure to exercise
or delay in exercising any right, nor any course of dealing or performance,
shall operate as a waiver of any right of the Administrative Agent or any Bank
under the Loan Documents or Applicable Law, nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right of the Administrative Agent or any Bank under the
Loan Documents or Applicable Law.
Section 9.07. Set-Off; Suspension of Payment and Performance. The
Administrative Agent and each Bank is hereby authorized by the Borrower, at any
time and from time to time, without notice, (a) during any Event of Default, to
set off against, and to appropriate and apply to the payment of, the Liabilities
of the Borrower under the Loan Documents (whether owing to such Person or to any
other Person that is the Administrative Agent or a Bank and whether matured or
unmatured, fixed or contingent or liquidated or unliquidated) any and all
Liabilities owing by such Person or any of its Affiliates to the Borrower
(whether payable in Dollars or any other currency, whether matured or unmatured
and, in the case of Liabilities that are deposits, whether general or special,
time or demand and however evidenced and whether maintained at a branch or
office located within or without the United States) and (b) during any Default,
to suspend the payment and performance of such Liabilities owing by such Person
or its Affiliates in an amount of the Loans plus interest accrued thereon and
other amounts then due and payable
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under the Loan Documents and, in the case of Liabilities that are deposits, to
the extent necessary, to return as unpaid for insufficient funds any and all
checks and other items drawn against such deposits.
Section 9.08. Sharing of Recoveries. (a) Each Bank agrees that, if, for
any reason, including as a result of (i) the exercise of any right of
counterclaim, set-off, banker's lien or similar right, (ii) its claim in any
applicable bankruptcy, insolvency or other similar law being deemed secured by a
Debt owed by it to the Borrower, including a claim deemed secured under Section
506 of the Bankruptcy Code, or (iii) the allocation of payments by the
Administrative Agent or the Borrower in a manner contrary to the provisions of
Section 1.13, such Bank shall receive payment of a proportion of the aggregate
amount due and payable to it hereunder as principal of or interest on the Loans
or fees that is greater than the proportion received by any other Bank in
respect of the aggregate of such amounts due and payable to such other Bank
hereunder, then the Bank receiving such proportionately greater payment shall
purchase participations (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in the rights of the other Banks hereunder so
that all such recoveries with respect to such amounts due and payable hereunder
(net of costs of collection) shall be pro rata; provided that if all or part of
such proportionately greater payment received by the purchasing Bank is
thereafter recovered by or on behalf of the Borrower from such Bank, such
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such Bank to the extent of such recovery,
but without interest (unless the purchasing Bank is required to pay interest on
the amount recovered to the Person recovering such amount, in which case the
selling Bank shall be required to pay interest at a like rate). So long as the
purchasing Bank has not advised it to the contrary, each selling Bank may
assume, for purposes of Section 9.09(b), that no Tax is required to withheld or
deducted by the Borrower from, or is otherwise payable by the Borrower in
connection with, any payment by the Borrower to or for the account of such Bank
under the Loan Documents. The Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation in any rights
hereunder so purchased or acquired pursuant to this Section 9.08(a) shall, with
respect to such participation, be entitled to all of the rights of a Bank
hereunder including but not limited to rights under Sections 1.11(c) and (d),
7.02, 7.03, 7.04, 7.05, 7.06, 7.07 9.02 and 9.07 (subject to any condition
imposed on a Bank hereunder with respect thereto, including delivery of the
forms and certificates required under Section 1.11(e)) and may exercise any and
all rights of set-off with respect to such participation as fully as though the
Borrower were directly indebted to the holder of such participation for Loans in
the amount of such participation.
(b) Each Bank agrees to exercise any right of counterclaim,
set-off, banker's lien or similar right that it may have in respect of the
Borrower in a manner so as to apportion the amount subject to such exercise, on
a pro rata basis, between (i) obligations of the Borrower for amounts subject to
the sharing provisions of Section 9.08(a) and (ii) other Liabilities of the
Borrower.
Section 9.09. Assignments and Participations. (a) Assignments. (i) The
Borrower may not assign any of its rights or obligations under the Loan
Documents without the prior written consent of each Bank, and no assignment of
any such obligation shall release the Borrower therefrom unless each Bank shall
have consented to such release in a writing specifically referring to the
obligation from which the Borrower is to be released.
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(ii) Each Bank may from time to time assign any or all
of its rights and obligations under the Loan Documents to one or more
Persons, without the consent of the Borrower; provided that, except in the case
of the grant of an assignment to a Federal Reserve Bank (which may be made
without condition or restriction), no such assignment shall be effective unless
(A) the assignment is consented to by the Borrower (unless an Event of Default
exists) and the Administrative Agent (in each case, such consent not to be
unreasonably withheld or delayed), (B) the assignment is to an Eligible Assignee
or is consented to by the Borrower (unless an Event of Default exists) and the
Administrative Agent, (C) the assignment shall involve the assignment of not
less than $5,000,000 (and integral multiples of $5,000,000 in excess thereof) of
the assignor Bank's Commitment, (D) a Notice of Assignment with respect to the
assignment, duly executed by the assignor and the assignee, shall have been
given to the Borrower (unless an Event of Default exists) and the Administrative
Agent, (E) except in the case of an assignment by the Bank that is the
Administrative Agent, the Administrative Agent shall have been paid an
assignment fee of $3,500 and (F) in the case of an assignment of a Registered
Note, such Registered Note shall have been surrendered for registration of
assignment duly endorsed by (or accompanied by a written instrument of
assignment duly executed by) the Registered Holder and such assignment shall be
recorded on the Register. Upon any effective assignment, the assignor shall be
released from the obligations so assigned and, in the case of an assignment of
all of its Loans and Commitment, shall cease to be a Bank. In the event of any
effective assignment by a Bank, the Borrower shall, against (except in the case
of a partial assignment) receipt of the existing Note of the assignor Bank,
issue a new Note to the assignee Bank.
(b) Participations. Each Bank may from time to time sell or
otherwise grant participations in any or all of its rights and obligations under
the Loan Documents without the consent of the Borrower, the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Co-Agent or any other
Bank. In the event of any such grant by a Bank of a participation, such Bank's
obligations under the Loan Documents to the other parties thereto shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, and the Borrower, the Administrative Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. Each holder of a participation in any
rights under the Loan Documents, if and to the extent the applicable
participation agreement so provides, shall, with respect to such participation,
be entitled to all of the rights of a Bank as fully as though it were a Bank
under Sections 1.11(c) and (d), 7.02, 7.03, 7.04, 7.05, 7.06, 7.07, 9.02 and
9.07 (subject to any conditions imposed on a Bank hereunder with respect thereto
1.11(e)) and may exercise any and all rights of set-off with respect to such
participation as fully as though the Borrower were directly indebted to the
holder of such participation for Loans in the amount of such participation;
provided, however, that no holder of a participation shall be entitled to any
amounts that would otherwise be payable to it with respect to its participation
under Sections 1.11(c) and (d) or 7.02 unless (x) such amounts are payable in
respect of a Regulatory Change Enacted after the date the applicable
participation agreement was executed or (y) such amounts would have been payable
to the Bank that granted such participation if such participation had not been
granted. Each Bank selling or granting a participation shall indemnify the
Borrower and the Administrative Agent for any Taxes and Liabilities that they
may sustain as a result of such Bank's failure to withhold and pay any Taxes
applicable to payments by such Bank to its participant in respect of such
participation.
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Section 9.10. Governing Law. The rights and duties of the Borrower, the
Administrative Agent, the Syndication Agent, the Documentation Agent, the
Co-Agent and the Banks under this Agreement and the Notes (including matters
relating to the Maximum Permissible Rate), and the other Loan Documents, shall
pursuant to New York General Obligations Law 5-1401 be governed by the law of
the State of New York.
Section 9.11. Judicial Proceedings; Waiver of Jury Trial. Any judicial
proceeding brought against the Borrower with respect to any Loan Document
Related Claim may be brought in any court of competent jurisdiction in the City
of New York, and, by execution and delivery of this Agreement, the Borrower (a)
accepts, generally and unconditionally, the nonexclusive jurisdiction of such
courts and any related appellate court and irrevocably agrees to be bound by any
judgment rendered thereby in connection with any Loan Document Related Claim and
(b) irrevocably waives any objection it may now or hereafter have as to the
venue of any such proceeding brought in such a court or that such a court is an
inconvenient forum. The Borrower hereby waives personal service of process and
consents that service of process upon it may be made by certified or registered
mail, return receipt requested, at its address specified or determined in
accordance with the provisions of Section 9.01(b), and service so made shall be
deemed completed on the third Business Day after such service is deposited in
the mail. Nothing herein shall affect the right of the Administrative Agent, any
Bank or any other Indemnified Person to serve process in any other manner
permitted by law or shall limit the right of the Administrative Agent, any Bank
or any other Indemnified Person to bring proceedings against the Borrower in the
courts of any other jurisdiction. Any judicial proceeding by the Borrower
against the Administrative Agent or any Bank involving any Loan Document Related
Claim shall be brought only in a court located in, in the case of the
Administrative Agent, the City and State of New York and, in the case of a Bank,
the jurisdiction in which such Bank's principal United States office is located.
THE BORROWER, THE ADMINISTRATIVE AGENT, THE SYNDICATION AGENT, THE DOCUMENTATION
AGENT, THE CO-AGENT AND EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING ANY LOAN DOCUMENT RELATED CLAIM.
Section 9.12. LIMITATION OF LIABILITY. THE ADMINISTRATIVE AGENT, THE
SYNDICATION AGENT, THE DOCUMENTATION AGENT, THE CO-AGENT, EACH BANK AND ANY
OTHER INDEMNIFIED PERSON SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO, AND THE
BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE FOR, ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL, AND, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW,
PUNITIVE, DAMAGES SUFFERED BY THE BORROWER IN CONNECTION WITH ANY LOAN DOCUMENT
RELATED CLAIM.
Section 9.13. Severability of Provisions. Any provision of the Loan
Documents that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction. To the extent permitted by Applicable Law, the Borrower hereby
waives any provision of Applicable Law that renders any provision of the Loan
Documents prohibited or unenforceable in any respect.
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Section 9.14. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto were upon the same instrument.
Section 9.15. Survival of Obligations. The rights and obligations of
the Borrower, the Administrative Agent, the Banks and the other Indemnified
Persons under Sections 1.11(c) and (d), 8.05, 9.02, 9.11 and 9.12 shall survive
the Repayment Date.
Section 9.16. Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Borrower, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Co-Agent and the Banks relating to the
subject matter hereof and supersede all prior agreements, representations and
understandings, if any, relating to the subject matter hereof.
Section 9.17. Successors and Assigns. All of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 9.18. Registered Notes. A Bank that is a Non-US Bank and that
has complied with Section 1.11(e) may have its Note issued as a Registered Note,
and for this purpose the Borrower shall cause to be maintained a Register and
the Borrower hereby designates the Administrative Agent as its agent for
purposes of maintaining such Register. Once issued, Registered Notes may not be
exchanged for Notes that are not Registered Notes and the ownership of
Registered Notes, and of the Loans evidenced thereby, may be transferred only in
accordance with the provisions of Section 9.09(a)(ii)(F).
Section 9.19. No Obligations. None of the Syndication Agent, the
Documentation Agent or the Co-Agent shall have any liability or obligation
whatsoever to the Borrower or any Bank at any time under this Agreement other
than its obligations as a Bank hereunder.
Section 9.20. No Fiduciary Relationship Established By Loan Documents.
The relationship between the Borrower and the Banks is that of DEBTOR and
CREDITOR. The Loan Documents are not intended to, and do not, establish a
FIDUCIARY relationship, nor does a FIDUCIARY relationship otherwise exist,
between the Borrower on the one hand, and Administrative Agent and the Banks, on
the other hand. The parties hereto have dealt at arm's length in negotiating the
Borrower Loan Documents.
ARTICLE 10
INTERPRETATION
Section 10.01. Defined Terms. For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to
that term in Section 302 of ERISA.
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"Adjusted Eurodollar Rate" means, for any Interest Period, a
rate per annum (rounded upward, if necessary, to the next higher 1/16 of 1%)
equal to the rate obtained by dividing (a) the Eurodollar Rate for such Interest
Period by (b) a percentage equal to 1 minus the Reserve Requirement in effect
from time to time during such Interest Period.
"Administrative Agent" means The Bank of New York, as agent
for the Banks under the Loan Documents, and any successor Administrative Agent
appointed pursuant to Section 8.07.
"Administrative Agent's Office" means the address of the
Administrative Agent specified in or determined in accordance with the
provisions of Section 9.01(b).
"Affiliate" means, with respect to a Person, any other Person
that, directly or indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of the Borrower.
"Agent's Fee Letter" means the letter agreement dated March
14, 2000 between the Borrower, The Bank of New York and BNY Capital Markets,
Inc.
"Agreement" means this Credit Agreement, including all
schedules, annexes and exhibits hereto.
"Agreement Date" means the date set forth as such on the
signature pages hereof, which date is the date the executed copies of this
Agreement were delivered by all parties hereto and, accordingly, this Agreement
became effective and the Banks first became committed to make the Loans and
other extensions of credit contemplated by this Agreement. If no such date is
there set forth, the Agreement Date shall be the date as of which this Agreement
is dated.
"Applicable Base Rate Margin", "Applicable Eurodollar Rate
Margin" and "Applicable Facility Fee" mean, as of any day, the percentages
determined by reference to the applicable Pricing Level based on the applicable
S&P Rating and the Moody's Rating in effect on such date of the Borrower as set
forth below:
PRICING LEVEL APPLICABLE BASE RATE MARGIN APPLICABLE EURODOLLAR MARGIN APPLICABLE FACILITY FEE
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level I 0. 0 % 0.4000% 0.1000%
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level II 0. 0 % 0.5000% 0.1250%
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level III 0. 0 % 0.6000% 0.1500%
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level IV 0. 0 % 0.8000% 0.2000%
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level V 0. 0 % 1.0000% 0.2500%
- ----------------------------------------------------------------------------------------------------------------------
Pricing Level VI 0. 0 % 1.3000% 0.3250%
- ----------------------------------------------------------------------------------------------------------------------
For purposes hereof,
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"Pricing Level I" means, and shall be applicable, if the S&P
Rating is A+ or higher or the Moody's Rating is A1 or higher;
"Pricing Level II" means, and shall be applicable, if the S&P
Rating is A or A- or the Moody's Rating is A2 or A3;
"Pricing Level III" means, and shall be applicable, if the S&P
Rating is BBB+ or the Moody's Rating is Baa1;
"Pricing Level IV" means, and shall be applicable, if the S&P
Rating is BBB or the Moody's Rating is Baa2;
"Pricing Level V" means, and shall be applicable, if the S&P
Rating is BBB- or the Moody's Rating is Baa3; and
"Pricing Level VI" means, and shall be applicable, if the S&P
Rating is less than BBB- and the Moody's Rating is less than Baa3;
provided that:
(a) If on such date the Moody's Rating and S&P Rating are
split rated such that more than one Pricing Level would apply, the Applicable
Base Rate Margin, Applicable Eurodollar Rate Margin or Applicable Facility Fee,
as applicable, shall be determined as follows: (i) if the Moody's Rating differs
by one ratings category from the S&P Rating, the Pricing Level based on the
higher rating will apply and (ii) if the Moody's Rating differs by more than one
ratings category from the S&P Rating, the Pricing Level based on one rating
category below the higher of such ratings will apply; and
(b) If on such date (i) neither a S&P Rating nor a Moody's
rating is available or (ii) an Event of Default has occurred and is continuing,
Pricing Level VI shall apply.
"Applicable Insurance Regulatory Authority" means, for any
Insurance Company, the insurance commission or similar administrative authority
or agency of the jurisdiction in which such Person is domiciled.
"Applicable Law" means, anything in Section 9.10 to the
contrary notwithstanding, (a) all applicable common law and principles of equity
and (b) all applicable provisions of all (i) constitutions, statutes, rules,
regulations and orders of governmental bodies, (ii) Governmental Approvals and
Governmental Registrations and (iii) orders, decisions, judgments and decrees.
"Bank" means (a) any Person listed as a "Bank" on the
signature pages hereof and (b) any Person (other than the Borrower or any of
its' Affiliates) that has been assigned any or all of the rights or obligations
of a Bank pursuant to Section 9.09(a).
"Bank Tax" means any net income or franchise tax imposed upon
any Bank by any jurisdiction (or political subdivision thereof) in which such
Bank or any of its Lending Offices is located, or imposed on any Bank as a
result of a present or former connection between
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such Bank and the jurisdiction of the governmental authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from such Bank having executed, delivered or
performed its obligations or received payment under or enforced, this Agreement
or any Note).
"Base Financial Statements" means the financial statements of
the Borrower and the Consolidated Subsidiaries referred to in Schedule 5.02(a).
"Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate in effect on such day and (b) the sum of the
Federal Funds Rate in effect on such day plus 1/2%.
"Base Rate Loan" means any Loan the interest on which is, or
is to be, as the context may require, computed on the basis of the Base Rate.
"Benefit Plan" of any Person, means, at any time, any employee
benefit plan (including a Multiemployer Benefit Plan), the funding requirements
of which (under Section 302 of ERISA or Section 412 of the Code) are, or at any
time within six years immediately preceding the time in question were, in whole
or in part, the responsibility of such Person.
"Borrower" means Reinsurance Group Of America, Incorporated,
a Missouri corporation.
"Business Day" means any day other than a Saturday, Sunday or
other day on which banks in New York City are authorized to close.
"Capital Security" means, with respect to any Person, (a) any
share of capital stock of or other unit of ownership interest in such Person or
(b) any security convertible into, or any option, warrant or other right to
acquire, any share of capital stock of or other unit of ownership interest in
such Person.
"Change of Control" with respect to the Borrower, shall be
deemed to have occurred if at any time (i) Metropolitan Life Insurance Company
ceases to own, directly or indirectly more than 40% of the Capital Securities of
the Borrower entitled to vote in elections of the Board of Directors of the
Borrower or (ii) Metropolitan Life Insurance Company ceases to have the power,
directly or indirectly, to elect the majority of the Board of Directors of the
Borrower.
"Co-Agent" means Royal Bank of Canada, as Co-Agent for the
Banks under the Loan Documents.
"Code" means the Internal Revenue Code of 1986.
"Commitment" of any Bank means (i) the amount set forth
opposite such Bank's name under the heading "Commitment" on Annex A or, in the
case of a Bank that becomes a Bank pursuant to an assignment, the amount of the
assignor's Commitment assigned to such Bank, in either case, as the same may be
reduced from time to time pursuant to Section 1.07 or increased or reduced from
time to time pursuant to assignments in accordance with Section
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9.09(a), or (ii) as the context may require, the obligation of such Bank to make
Loans in an aggregate unpaid principal amount not exceeding such amount.
"Company Action Level Risk Based Capital" shall have the
meaning ascribed thereto in the Model Act.
"Consolidated Indebtedness" means, at any time, the
consolidated Indebtedness of the Borrower and the Consolidated Subsidiaries as
of such time; provided, however, for purposes of calculating the covenant
contained in Section 4.21, Consolidated Indebtedness shall not include the
obligation of the Borrower or any Subsidiary that is an Insurance Company under
letters of credit to the extent undrawn supporting the liability of such
Subsidiary in respect of any reinsurance underwritten by such Subsidiary.
"Consolidated Net Worth" means, at any time, without
duplication, the consolidated stockholders' equity of the Borrower and the
Consolidated Subsidiaries (without giving effect to any adjustment made pursuant
to FASB 115 to the extent less than $50,000,000) less their consolidated
Mandatorily Redeemable Stock (except to the extent deducted in determining such
consolidated stockholders' equity) in each case, as of such time.
"Consolidated Subsidiary" means a Subsidiary which is such by
virtue of clause (a) of the definition thereof.
"Contract" means (a) any agreement (whether bilateral or
unilateral or executory or non-executory and whether a Person entitled to rights
thereunder is so entitled directly or as a third-party beneficiary), including
an indenture, lease or license, (b) any deed or other instrument of conveyance,
(c) any certificate of incorporation or charter and (d) any by-law.
"Control" means, with respect to a Person, possession by
another Person, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such first Person, whether through
the ownership of voting securities, by contract or otherwise. The words
"Controlling" and "controlled" have correlative meanings.
"Debt" means any Liability that constitutes "debt" or "Debt"
under section 101(11) of the Bankruptcy Code or under the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any analogous Applicable
Law.
"Default" means any condition or event that constitutes an
Event of Default or that with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"Documentation Agent" means Fleet National Bank, as
documentation agent for the Banks under the Loan Documents.
"Dollars" and the sign "$" mean lawful money of the United
States of America.
"Domestic Lending Office" of any Bank means (a) the branch or
office of such Bank set forth below such Bank's name under the heading "Domestic
Lending Office" on Annex A or, in the case of a Bank that becomes a Bank
pursuant to an assignment, the branch or office
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of such Bank set forth under the heading "Domestic Lending Office" in the Notice
of Assignment given to the Borrower and the Administrative Agent with respect to
such assignment or (b) such other branch or office of such Bank designated by
such Bank from time to time as the branch or office at which its Base Rate Loans
are to be made or maintained.
"Domestic Subsidiary" means any Subsidiary organized and
existing under the laws of the United States, any state thereof or the District
of Columbia.
"Eligible Assignee" means (a) any commercial bank, savings and
loan institution or savings bank organized under the laws of the United States,
or any state thereof, and having combined capital and surplus in excess of
$100,000,000, (b) any commercial bank organized under the laws of any other
country that is a member of the Organization for Economic Cooperation and
Development ("OECD"), or a political subdivision of any such country, and having
combined capital and surplus (or the equivalent thereof under the accounting
principles applicable thereto) in excess of $100,000,000, provided that such
bank is acting through a branch, agency or Affiliate located in the country in
which it is organized or another country that is also a member of the OECD, (c)
the central bank of any country that is a member of the OECD or (d) any
insurance company, pension fund, mutual fund or other financial institution of
recognized standing.
"Enacted", as applied to a Regulatory Change, means the date
such Regulatory Change first becomes effective or is implemented or first
required or expected to be complied with, whether the same is (a) the result of
an enactment by a government or any agency or political subdivision thereof, a
determination of a court or regulatory authority, a request or directive of a
regulatory authority, or otherwise or (b) enacted, adopted, issued or proposed
before or after the Agreement Date.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Affiliate" means, with respect to any Person, any other
Person, including a Subsidiary or other Affiliate of such first Person, that is
a member of any group of organizations within the meaning of Code Sections
414(b), (c), (m) or (o) of which such first Person is a member.
"Eurodollar Business Day" means any Business Day on which
dealings in Dollar deposits are carried on in the London interbank market and on
which commercial banks are open for domestic and international business
(including dealings in Dollar deposits) in London, England.
"Eurodollar Lending Office" of any Bank means (a) the branch
or office of such Bank set forth below such Bank's name under the heading
"Eurodollar Lending Office" on Annex A or, in the case of a Bank that becomes a
Bank pursuant to an assignment, the branch or office of such Bank set forth
under the heading "Eurodollar Lending Office" in the Notice of Assignment given
to the Borrower and the Administrative Agent with respect to such assignment or
(b) such other branch or office of such Bank designated by such Bank from time
to time as the branch or office at which its Eurodollar Rate Loans are to be
made or maintained.
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"Eurodollar Rate" means, for any Interest Period, the rate per
annum determined by the Administrative Agent to be the rate at which the
Administrative Agent offered or would have offered to place with first-class
banks in the London interbank market deposits in Dollars in amounts comparable
to the Eurodollar Rate Loan to which such Interest Period applies, for a period
equal to such Interest Period, at 11:00 a.m. (London time) on the second
Eurodollar Business Day before the first day of such Interest Period.
"Eurodollar Rate Loan" means any Loan the interest on which
is, or is to be, as the context may require, computed on the basis of the
Adjusted Eurodollar Rate.
"Event of Default" means any of the events specified in
Section 6.01.
"Existing Benefit Plan" means any Benefit Plan listed on
Schedule 4.16.
"Existing Guaranty" means (a) any Guaranty outstanding on the
Agreement Date, to the extent set forth on Schedule 4.10, and (b) any Guaranty
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (i) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (ii) such Guaranty is binding
only on the obligor or obligors under the Guaranty so renewed, extended or
replaced, (iii) the principal amount of the obligations Guaranteed by such
Guaranty does not exceed the principal amount of the obligations Guaranteed by
the Guaranty so renewed, extended or replaced at the time of such renewal,
extension or replacement and (iv) the obligations Guaranteed by such Guaranty
bear interest at a rate per annum not exceeding the rate borne by the
obligations Guaranteed by the Guaranty so renewed, extended or replaced except
for any increase that is commercially reasonable at the time of such increase.
"Federal Funds Rate" means, for any day, the weighted average
of the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of quotations for such day on such
transactions received by the Administrative Agent from three federal funds
brokers of recognized standing selected by the Administrative Agent.
"Funded Current Liability Percentage" has the meaning ascribed
to that term in Code Section 401(a)(29).
"Generally Accepted Accounting Principles" means (a) in the
case of the Base Financial Statements, generally accepted accounting principles
at the time of the issuance of the Base Financial Statements and (b) in all
other cases, generally accepted accounting principles as in effect from time to
time in the United States.
"Governmental Approval" means any authority, consent,
approval, license (or the like) or exemption (or the like) of any governmental
unit.
"Governmental Registration" means any registration or filing
(or the like) with, or report or notice (or the like) to, any governmental unit.
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"Guaranty" of any Person means any obligation, contingent or
otherwise, of such Person (a) to pay any Liability of any other Person or to
otherwise protect, or having the practical effect of protecting, the holder of
any such Liability against loss (whether such obligation arises by virtue of
such Person being a partner of a partnership or participant in a joint venture
or by agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or indemnify such
third Person or otherwise). The word "Guarantee" when used as a verb has the
correlative meaning.
"Indebtedness" of any Person means (in each case, whether such
obligation is with full or limited recourse) (a) any obligation of such Person
for borrowed money, (b) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (c) any obligation of such Person
to pay the deferred purchase price of property or services, except a trade
account payable that arises in the ordinary course of business but only if and
so long as the same is payable on customary trade terms, (d) any obligation of
such Person as lessee under a capital lease, (e) any Mandatorily Redeemable
Stock of such Person owned by any Person other than such Person or an
Wholly-Owned Subsidiary of such Person (the amount of such Mandatorily
Redeemable Stock to be determined for this purpose as the higher of the
liquidation preference of and the amount payable upon redemption of such
Mandatorily Redeemable Stock), (f) any obligation, contingent or otherwise, of
such Person to reimburse any other Person in respect of amounts paid under a
letter of credit or other Guaranty issued by such other Person other than any
such reimbursement obligation in respect of performance bonds and letters of
credit to provide security for worker's compensation claims incurred in the
ordinary course of business to the extent that such reimbursement obligation
does not remain outstanding after it becomes non-contingent, (g) any obligation
with respect to an interest rate or currency swap or similar obligation
obligating such Person to make payments, whether periodically or upon the
happening of a contingency, except that if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligation shall be the net amount thereof, (h) any Indebtedness of others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on any asset of such Person
and (i) any Indebtedness of others Guaranteed by such Person.
"Indemnified Person" means any Person that is, or at any time
was, the Administrative Agent, the Syndication Agent, the Documentation Agent,
the Co-Agent, a Bank, an Affiliate of the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Co-Agent or a Bank or a director, officer,
employee or agent of any such Person.
"Information" means data, certificates, reports, statements
(including financial statements), opinions of counsel, documents and other
information.
"Insurance Company" shall mean any Subsidiary which is engaged
primarily in the underwriting of insurance or reinsurance.
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"Interest Payment Date" means June 30, September 30, December
31 and March 31 of each year.
"Interest Period" means a period commencing, in the case of
the first Interest Period applicable to a Eurodollar Rate Loan, on the date of
the making of, or conversion into, such Loan, and, in the case of each
subsequent, successive Interest Period applicable thereto, on the last day of
the immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day in the first, second, third or sixth calendar month
thereafter, except that (a) any Interest Period that would otherwise end on a
day that is not a Eurodollar Business Day shall be extended to the next
succeeding Eurodollar Business Day unless such Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day and (b) any Interest Period that begins on the
last Eurodollar Business Day of a calendar month (or on a day for which there is
no numerically corresponding day in the calendar month in which such Interest
Period ends) shall end on the last Eurodollar Business Day of a calendar month.
"Investment" of any Person means (a) any Capital Security,
evidence of Indebtedness or other security or instrument issued by any other
Person, (b) any loan, advance or extension of credit to (including Guaranties of
Liabilities of), or any contribution to the capital of, any other Person and (c)
any other investment in any other Person. An Investment shall be deemed to be
"outstanding", except to the extent that it has been paid or otherwise satisfied
in cash or the Person making such Investment has received cash in consideration
for the sale thereof, notwithstanding the fact that such Investment may
otherwise have been forgiven, released, canceled or otherwise nullified.
"Lending Office" of any Bank means the Domestic Lending Office
or the Eurodollar Lending Office of such Bank.
"Liability" of any Person means (in each case, whether with
full or limited recourse) any indebtedness, liability, obligation, covenant or
duty of or binding upon, or any term or condition to be observed by or binding
upon, such Person or any of its assets, of any kind, nature or description,
direct or indirect, absolute or contingent, due or not due, contractual or
tortious, liquidated or unliquidated, whether arising under Contract, Applicable
Law, or otherwise, whether now existing or hereafter arising, and whether for
the payment of money or the performance or non-performance of any act.
"Lien" means, with respect to (a) any property or asset,
including any investment property, (or any income or profits therefrom) of any
Person (in each case whether the same is consensual or nonconsensual or arises
by Contract, operation of law, legal process or otherwise) (i) any mortgage,
lien, pledge, attachment, levy or other security interest of any kind thereupon
or in respect thereof or (ii) any other arrangement, express or implied, under
which the same is subordinated, transferred, sequestered or otherwise identified
so as to subject the same to, or make the same available for, the payment or
performance of any Liability in priority to the payment of the ordinary,
unsecured Liabilities of such Person, or (b), in the case of any investment
property, any Contract or other arrangement, express or implied, under which any
Person has the right to control such investment property. For the purposes of
this Agreement, a Person shall be deemed to own subject to a Lien any asset that
it has acquired or holds subject to
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the interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset.
"Loan" means any amount advanced by a Bank pursuant to Section
1.01.
"Loan Document Related Claim" means any claim or dispute
(whether arising under Applicable Law, including any "environmental" or similar
law, under Contract or otherwise and, in the case of any proceeding relating to
any such claim or dispute, whether civil, criminal, administrative or otherwise)
in any way arising out of, related to, or connected with, the Loan Documents,
the relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Agreement Date or before or after the Repayment Date.
"Loan Documents" means (a) this Agreement and the Notes and
(b) all other agreements, documents and instruments relating to, arising out of,
or in any way connected with (i) any agreement, document or instrument referred
to in clause (a), (ii) any other agreement, document or instrument referred to
in this clause (b) or (iii) any of the transactions contemplated by any
agreement, document or instrument referred to in clause (a) or in this clause
(b).
"Mandatorily Redeemable Stock" means, with respect to any
Person, any share of such Person's capital stock to the extent that it is (a)
redeemable, payable or required to be purchased or otherwise retired or
extinguished, or convertible into any Indebtedness or other Liability of such
Person, (i) at a fixed or determinable date, whether by operation of a sinking
fund or otherwise, (ii) at the option of any Person other than such Person or
(iii) upon the occurrence of a condition not solely within the control of such
Person, such as a redemption required to be made out of future earnings or (b)
convertible into Mandatorily Redeemable Stock.
"Materially Adverse Effect" means, (a) with respect to any
Person, any materially adverse effect on such Person's business, assets,
Liabilities, financial condition, results of operations or business prospects,
(b) with respect to a group of Persons "taken as a whole", any materially
adverse effect on such Persons' business, assets, Liabilities, financial
conditions, results of operations or business prospects taken as a whole on,
where appropriate, a consolidated basis in accordance with Generally Accepted
Accounting Principles and (c) with respect to any Loan Document, any adverse
effect, WHETHER OR NOT MATERIAL, on the binding nature, validity or
enforceability thereof as an obligation of the Borrower.
"Material Subsidiary" means RGA Re, RCM, RGA Canada, RGA
Barbados and any other Subsidiary as to which (a) the aggregate gross revenues
of itself and its Subsidiaries (as determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles) for its most recently
ended fiscal year are greater than or equal to 10% of the aggregate gross
revenues of the Borrower and its Consolidated Subsidiaries (as determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles)
for such fiscal year or (b) the total assets of itself and its Subsidiaries (as
determined on a consolidated basis in accordance with Generally Accepted
Accounting Principles) at such time are greater than or equal to 10% of the
aggregate assets of the Borrower and its Subsidiaries (as determined on a
consolidated basis in accordance with Generally Accepted Accounting Principles)
at such time.
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"Maximum Permissible Rate" means, with respect to interest
payable on any amount, the rate of interest on such amount that, if exceeded,
could, under Applicable Law, result in (a) civil or criminal penalties being
imposed on the payee or (b) the payee's being unable to enforce payment of (or,
if collected, to retain) all or any part of such amount or the interest payable
thereon.
"Model Act" shall mean the Risk-Based Capital for Life and/or
Health Insurers Model Act and the rules, regulations and procedures prescribed
from time to time by the NAIC with respect thereto, in each case as amended,
modified or supplemented from time to time by the NAIC.
"Moody's Rating" means at any time, the senior unsecured long
term debt rating of the Borrower as most recently announced by Moody's Investor
Service, Inc. or any successor thereto.
"Multiemployer Benefit Plan" means any Benefit Plan that is a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"NAIC" means the National Association of Insurance
Commissioners or any successor thereto.
"Non-US Bank" means a Person that is not a United States
Person and that is not described in Section 881(c)(3) of the Code.
"Note" means any Note in the form of Exhibit A and includes
such a Note that is a Registered Note.
"Notice of Assignment" means any notice to the Borrower and
the Administrative Agent with respect to an assignment pursuant to Section
9.09(a) setting forth the name of the assignor, the name of the assignee, a
description of the rights and obligation defined, the effective date of the
assignment and, if the assignee is not already a Bank, the assignee's address
for notices and Lending Office addresses.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Guaranty" means any Guaranty that (a) is an
endorsement of a check for collection in the ordinary course of business or (b)
is a Guaranty of and only of the obligations of the Borrower under the Loan
Documents or (c) constitutes Indebtedness for purposes of calculating the
covenant in Section 4.21 or (d) is a Guaranty, not otherwise specifically
covered in this definition, of Liabilities of a Subsidiary in an aggregate
amount at any time outstanding not exceeding $15,000,000.
"Permitted Lien" means (a) any Lien securing and only securing
the obligations of the Borrower under the Loan Documents; (b) any Lien securing
a tax, assessment or other governmental charge or levy or the claim of a
materialman, mechanic, carrier, warehouseman or landlord for labor, materials,
supplies or rentals incurred in the ordinary course of business, but only if
payment thereof shall not at the time be required to be made in accordance with
Section 4.04 and foreclosure, distraint, sale or other similar proceedings shall
not have been commenced;
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(c) any Lien on the properties and assets of a Subsidiary of the Borrower
securing an obligation owing to the Borrower; (d) any Lien consisting of a
deposit or pledge made in the ordinary course of business in connection with, or
to secure payment of, obligations under workers' compensation, unemployment
insurance or similar legislation; (e) any Lien arising pursuant to an order of
attachment, distraint or similar legal process arising in connection with legal
proceedings, but only if and so long as the execution or other enforcement
thereof is not unstayed for more than 20 days; (f) any Lien existing on (i) any
property or asset of any Person at the time such Person becomes a Subsidiary or
(ii) any property or asset at the time such property or asset is acquired by the
Borrower or a Subsidiary, but only, in the case of either (i) or (ii), if and so
long as (A) such Lien was not created in contemplation of such Person becoming a
Subsidiary or such property or asset being acquired, (B) such Lien is and will
remain confined to the property or asset subject to it at the time such Person
becomes a Subsidiary or such property or asset is acquired and to fixed
improvements thereafter erected on such property or asset, (C) such Lien secures
only the obligation secured thereby at the time such Person becomes a Subsidiary
or such property or asset is acquired and (D) the obligation secured by such
Lien is not in default; (g) any Lien in existence on the Agreement Date to the
extent set forth on Schedule 4.11, but only, in the case of each such Lien, to
the extent it secures an obligation outstanding on the Agreement Date to the
extent set forth on such Schedule; (h) any Lien securing Purchase Money
Indebtedness but only if, in the case of each such Lien, (i) such Lien shall at
all times be confined solely to the property or asset the purchase price of
which was financed through the incurrence of the Purchase Money Indebtedness
secured by such Lien and to fixed improvements thereafter erected on such
property or asset and (ii) such Lien attached to such property or asset within
30 days of the acquisition of such property or asset; (i) any Lien pursuant to a
Capital Lease but only if, in the case of each such Lien, such Lien shall at all
times be confined solely to the property or asset financed through the Capital
Lease secured by such Lien; (j) any Lien on Investments and cash balances of any
Insurance Company (other than any Capital Securities of any Subsidiary) securing
obligations of such Person in respect of (i) letters of credit obtained in the
ordinary course of business to support reinsurance liabilities of any Insurance
Company and/or (ii) trust arrangements formed in the ordinary course of business
for the benefit of cedents to secure reinsurance recoverables owed to them by
any Insurance Company; (k) nonconsensual Liens incurred in the ordinary course
of business in favor of financial intermediaries and clearing agents pending
clearance of payments for Investment; (l) Liens arising solely by virtue of any
statutory or common law provision relating to banker's liens, rights of set-off
or similar rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; provided, that (i) such deposit account
is not a dedicated cash collateral account and is not subject to restrictions
against access by the Borrower in excess of those set forth by regulations
promulgated by the Board of Governors of the United States Federal Reserve
System, and (ii) such deposit account is not intended by the Borrower or any
Subsidiary to provide collateral to the depository institution; (m) Liens
consisting of deposits made by any Insurance Company with the insurance
regulatory authority in its jurisdiction of formation or other statutory Liens
or Liens or claims imposed or required by applicable insurance law or regulation
against the assets of any Insurance Company, in each case in favor of all
policyholders of such Insurance Company and in the ordinary course of such
Insurance Company's business; or (n) any Lien constituting a renewal, extension
or replacement of a Lien constituting a Permitted Lien by virtue of clauses (f)
through (m) of this definition, but only if (i) at the time such Lien is granted
and immediately after giving effect thereto, no Default would
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exist, (ii) such Lien is limited to all or a part of the property or asset that
was subject to the Lien so renewed, extended or replaced and to fixed
improvements thereafter erected on such property or asset, (iii) the principal
amount of the obligations secured by such Lien does not exceed the principal
amount of the obligations secured by the Lien so renewed, extended or replaced
and (iv) the obligations secured by such Lien bear interest at a rate per annum
not exceeding the rate borne by the obligations secured by the Lien so renewed,
extended or replaced except for any increase that is commercially reasonable at
the time of such increase.
"Permitted Restrictive Covenant" means (a) any covenant or
restriction contained in any Loan Document, (b) any covenant or restriction
binding upon any Person at the time such Person becomes a Subsidiary of the
Borrower if the same is not created in contemplation thereof, (c) any covenant
or restriction of the type contained in Section 4.11 that is contained in any
Contract evidencing or providing for the creation of or concerning Purchase
Money Indebtedness so long as such covenant or restriction is limited to the
property purchased therewith, (d) any covenant or restriction described in
Schedule 4.18, but only to the extent such covenant or restriction is there
identified by specific reference to the provision of the Contract in which such
covenant or restriction is contained, (e) any covenant or restriction requiring
the approval of the Applicable Insurance Regulatory Authority prior to the
making of payments by RGA Re under (i) the 7.35% surplus note dated December 15,
1997 made by RGA Re or (ii) the 7.08% surplus note dated December 11, 1998 made
by RGA Re or (f) any covenant or restriction that (i) is not more burdensome
than an existing Permitted Restrictive Covenant that is such by virtue of clause
(b), (c), (d), (e) or (f), (ii) is contained in a Contract constituting a
renewal, extension or replacement of the Contract in which such existing
Permitted Restrictive Covenant is contained and (iii) is binding only on the
Person or Persons bound by such existing Permitted Restrictive Covenant.
"Person" means any individual, sole proprietorship,
corporation, partnership, trust, unincorporated organization, mutual company,
joint stock company, estate, union, employee organization, government or any
agency or political subdivision thereof or, for the purpose of the definition of
"ERISA Affiliate", any trade or business.
"Post-Default Rate" means the rate otherwise applicable under
Section 1.03(a)(i) plus 2%.
"Prime Rate" means the prime commercial lending rate of The
Bank of New York, as publicly announced to be in effect from time to time. The
Prime Rate shall be adjusted automatically, without notice, on the effective
date of any change in such prime commercial lending rate. The Prime Rate is not
necessarily The Bank of New York's lowest rate of interest.
"Prohibited Transaction" means any transaction that is
prohibited under Code Section 4975 or ERISA Section 406 and not exempt under
Code Section 4975 or ERISA Section 408.
"Purchase Money Indebtedness" means (a) Indebtedness of the
Borrower or its Subsidiaries incurred to finance part or all of (but not more
than) the purchase price of a tangible asset, provided that (i) neither the
Borrower nor any Subsidiary had at any time prior to such purchase any interest
in such asset other than a security interest or an interest as lessee under an
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operating lease and (ii) such Indebtedness is incurred within 30 days after such
purchase or (b) Indebtedness that (i) constitutes a renewal, extension or
refunding of, but not an increase in the principal amount of, Purchase Money
Indebtedness that is such by virtue of clause (a) or (b) and (ii) bears interest
at a rate per annum that is commercially reasonable at the time such
Indebtedness is incurred.
"RCM" means Reinsurance Company of Missouri, Incorporated, a
Missouri corporation.
"Register" means a register kept at the Administrative Agent's
office by the Administrative Agent on behalf of the Borrower, at no extra charge
to the Borrower, on which the Administrative Agent records the names of the
Registered Holders of Registered Notes.
"Registered Holder" means the Person in whose name a
Registered Note is registered.
"Registered Note" means a Note the name of the holder of which
has been recorded on the Register. The registration of a Note shall constitute
the registration of the Loan evidenced thereby.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System.
"Regulatory Change" means any Applicable Law, interpretation,
directive, determination, request or guideline (whether or not having the force
of law), or any change therein or in the administration or enforcement thereof,
that is Enacted after the Agreement Date, including any such that imposes,
increases or modifies any Tax, Reserve Requirement, insurance charge, special
deposit requirement, assessment or capital adequacy requirement.
"Repayment Date" means the later of (a) the termination of the
Commitments (whether as a result of the occurrence of the Termination Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of the Loans and all other amounts payable or
accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of
any Person, (a) the occurrence of any of the events set forth in ERISA Sections
4043(c), other than an event as to which the requirement of 30 days' notice, or
the penalty for failure to provide such notice, has been waived by the PBGC, (b)
the existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such Person or any of its ERISA Affiliates to provide
security to such Benefit Plan under Code
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Section 401(a)(29) or (e) any failure to make a payment required by Code Section
412(m) with respect to such Benefit Plan.
"Representation and Warranty" means any representation or
warranty made pursuant to or under (a) Section 2.02, Article 3, Section 5.02 or
any other provision of this Agreement or (b) any amendment to, or waiver of
rights under, this Agreement, WHETHER OR NOT, IN THE CASE OF ANY REPRESENTATION
OR WARRANTY REFERRED TO IN CLAUSE (a) OR (b) OF THIS DEFINITION (EXCEPT, IN EACH
CASE, TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED), THE INFORMATION THAT IS THE
SUBJECT MATTER THEREOF IS WITHIN THE KNOWLEDGE OF THE BORROWER.
"Required Banks" means, at any time, Banks having at least 51%
of the aggregate amount of the Commitments or, if the Commitments shall have
expired or been terminated, Banks having at least 51% of the aggregated amount
of the Loans outstanding.
"Reserve Requirement" means, at any time, the then current
maximum rate for which reserves (including any marginal, supplemental or
emergency reserve) are required to be maintained under Regulation D by member
banks of the Federal Reserve System in New York City with deposits exceeding
five billion Dollars against "Eurocurrency liabilities", as that term is used in
Regulation D. The Adjusted Eurodollar Rate shall be adjusted automatically on
and as of the effective date of any change in the Reserve Requirement.
"Restricted Payment" means any payment with respect to or on
account of any of the Borrower's Capital Securities, including any dividend or
other distribution on, any payment of interest on or principal of, and any
payment on account of any purchase, redemption, retirement, exchange, defeasance
or conversion of, or on account of any claim relating to or arising out of the
offer, sale or purchase of, any such Capital Securities. For the purposes of
this definition, a "payment" shall include the transfer of any asset or the
incurrence of any Indebtedness or other Liability (the amount of any such
payment to be the fair market value of such asset or the amount of such
obligation, respectively) but shall not include the issuance by the Borrower to
the holder of a class or series of a class of its any capital stock of shares of
the same class and, if applicable, series, other than, in any case, Mandatorily
Redeemable Stock.
"RGA Barbados" means RGA Reinsurance Company (Barbados) Ltd.,
a Barbados corporation.
"RGA Canada" means RGA Life Reinsurance Company of Canada, a
company organized under the laws of Canada.
"RGA Re" means RGA Reinsurance Company, a corporation
organized under the laws of the state of Missouri.
"SAP" means, for any Insurance Company, the statutory
accounting procedures or practices prescribed or permitted by the Applicable
Insurance Regulatory Authority applied on a consistent basis.
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"S&P Rating" means, at any time, the senior unsecured long
term debt rating of the Borrower as most recently announced by Standard & Poor's
Rating Group, a Division of the McGraw-Hill Companies or any successor thereto.
"Statutory Statement" means, for any Insurance Company, for
any fiscal year of such Insurance Company, the most recent annual statement
required to be filed with the Applicable Insurance Regulatory Authority and, for
any fiscal quarter or other applicable period of such Insurance Company, the
statement required by Section 5.01(d), which statement shall be prepared in
accordance with SAP.
"Subsidiary" means, with respect to any Person at any time,
(a) any other Person the accounts of which would be consolidated with those of
such first Person in its consolidated financial statements as of such time, and
(b) any other Person (i) that is, at such time, Controlled by, or (ii)
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions), or other
ownership interests of which ordinarily constituting a majority voting interest,
are at such time, directly or indirectly, owned or controlled by such first
Person, or by such first Person and one or more of its Subsidiaries; unless
otherwise specified, "Subsidiary" means a Subsidiary of the Borrower.
"Surplus" shall mean, for any Insurance Company, on any date,
the amount (determined in accordance with SAP) of such Person's surplus as at
the last day of the fiscal quarter of such Person ending on or most recently
ended prior to such date.
"Syndication Agent" means Bank of America, N.A., as syndication
agent for the Banks under the Loan Documents.
"Tax" means any federal, state or foreign tax, assessment or
other governmental charge (including any withholding tax) upon a Person or upon
its assets, revenues, income or profits.
"Termination Date" means third anniversary of the Agreement
Date.
"Termination Event" means, with respect to any Benefit Plan,
(a) any Reportable Event with respect to such Benefit Plan, (b) the termination
of such Benefit Plan, or the filing of a notice of intent to terminate such
Benefit Plan, or the treatment of any amendment to such Benefit Plan as a
termination under ERISA Section 4041(c), (c) the institution of proceedings to
terminate such Benefit Plan under ERISA Section 4042 or (d) the appointment of a
trustee to administer such Benefit Plan under ERISA Section 4042.
"Total Adjusted Capital" shall have the meaning ascribed
thereto in the Model Act.
"Type" means, with respect to Loans, any of the following,
each of which shall be deemed to be a different "Type" of Loan: Base Rate Loans,
Eurodollar Rate Loans having a one-month Interest Period, Eurodollar Rate Loans
having a two-month Interest Period, Eurodollar Rate Loans having a three-month
Interest Period and Eurodollar Rate Loans having a six-month Interest Period.
Any Eurodollar Rate Loan having an Interest Period that differs from the
duration specified for a Type of Eurodollar Rate Loan listed above solely as a
result of the
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operation of clauses (a) and (b) of the definition of "Interest
Period" shall be deemed to be a Loan of such above-listed Type notwithstanding
such difference in duration of Interest Periods.
"Unfunded Benefit Liabilities" means, with respect to any
Benefit Plan at any time, the amount of unfunded benefit liabilities of such
Benefit Plan at such time as determined under ERISA Section 4001(a)(18).
"United States Person" means a corporation, partnership or
other entity created, organized or incorporated under the laws of the United
States of America, a state thereof, or the District of Columbia.
"Wholly Owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person all of the Capital Securities of which (except
directors' qualifying shares) are, directly or indirectly, owned or Controlled
by such Person or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more of such Subsidiaries; unless otherwise specified,
"Wholly Owned Subsidiary" means a Wholly Owned Subsidiary of the Borrower.
Section 10.02. Other Interpretive Provisions. (a) Except as otherwise
specified herein, all references herein (i) to any Person shall be deemed to
include such Person's successors and assigns, (ii) to any Applicable Law defined
or referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or other Contract
defined or referred to herein shall be deemed references to (A) in the case of
any such Loan Document, such Loan Document as the terms thereof may have been or
may be amended, supplemented, waived or otherwise modified from time to time,
and (B) in the case of any other Contract, such Contract as in effect on the
Agreement Date.
(b) When used in this Agreement, the words "herein", "hereof"
and "hereunder" and words of similar import shall refer to this Agreement as a
whole and not to any provision of this Agreement, and the words "Article",
"Section", "Annex", "Schedule" and "Exhibit" shall refer to Articles and
Sections of, and Annexes, Schedules and Exhibits to, this Agreement unless
otherwise specified.
(c) Whenever the context so requires, the neuter gender
includes the masculine or feminine, the masculine gender includes the feminine,
and the singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Each authorization in favor of the Administrative Agent,
the Banks or any other Person granted by or pursuant to this Agreement shall be
deemed to be irrevocable and coupled with an interest.
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(f) Except as otherwise specified herein, all references to the
time of day shall be deemed to be to New York City time as then in effect.
Section 10.03. Accounting Matters. (a) Unless otherwise specified
herein, all accounting determinations hereunder and all computations utilized by
the Borrower in complying with the covenants contained herein shall be made, all
accounting terms used herein shall be interpreted, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
Generally Accepted Accounting Principles, or in the case of an Insurance
Company, statutory accounting principles, except, in the case of such financial
statements prepared in accordance with Generally Accepted Accounting Principles,
for departures from Generally Accepted Accounting Principles that may from time
to time be approved in writing by the independent certified public accountants
who are at the time, in accordance with Section 5.01(b) reporting on the
Borrower's financial statements.
(b) If any changes in Generally Accepted Accounting Principles
or, in the case of an Insurance Company, statutory accounting principles from
those used in the preparation of the Base Financial Statements are hereafter
required or permitted and are adopted by the Borrower with the agreement of its
independent certified public accountants and such changes result or could result
(for any present or future period) in a change in the method of calculation of
any of the financial covenants, standards or terms in or relating to such
covenants, the parties hereto agree to enter into discussions with a view to
amending such provisions so as to equitably reflect such changes with the
desired result that the criteria for evaluating the financial condition of the
Borrower and its Subsidiaries shall be the same after such changes as if such
changes had not been made, provided, that no change to Generally Accepted
Accounting Principles or such statutory accounting principles that would affect
or could affect (for any present or future period) the method of calculation of
any of said financial covenants, standards or terms shall be given effect in
such calculations until such provisions are amended, in a manner satisfactory to
the Borrower and the Required Banks, to so reflect such change to Generally
Accepted Accounting Principles or such statutory accounting principles.
Section 10.04. Representations and Warranties. All Representations and
Warranties shall be deemed made (a) in the case of any Representation and
Warranty contained in this Agreement at the time of its initial execution and
delivery, at and as of the Agreement Date, (b) in the case of any Representation
and Warranty contained in this Agreement or any other document at the time any
Loan is made, at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 10.05. Captions. Captions to Articles, Sections and subsections
of, and Annexes, Schedules and Exhibits to, this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or in any way affect the meaning or construction of any
provision of this Agreement.
Section 10.06. Interpretation of Related Documents. Except as otherwise
specified therein, terms that are defined herein that are used in Notes,
certificates, opinions and other
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documents delivered in connection herewith shall have the meanings ascribed to
them herein and such documents shall be otherwise interpreted in accordance with
the provisions of this Article 10.
[the remainder of this page has intentionally been left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers all as of the
Agreement Date.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:___________________________________________
Name:
Title:
THE BANK OF NEW YORK
as Administrative Agent and as a Bank
By:___________________________________________
Name:
Title:
BANK OF AMERICA, N.A.
as Syndication Agent and as a Bank
By:___________________________________________
Name:
Title:
FLEET NATIONAL BANK
as Documentation Agent and as a Bank
By:___________________________________________
Name:
Title:
58
ROYAL BANK OF CANADA
as Co-Agent and as a Bank
By:___________________________________________
Name:
Title:
MELLON BANK, N.A.
as a Bank
By:___________________________________________
Name:
Title:
Agreement Date: May 24, 2000
59
ANNEX A
Banks, Lending Offices
and Notice Addresses Commitments
- ----------------------
THE BANK OF NEW YORK $35,000,000
Domestic Lending Office:
One Wall Street
New York, New York 10286
Eurodollar Lending Office:
One Wall Street
New York, New York 10286
Notice Address for Credit Issues:
One Wall St. - 17th Floor
New York, NY 10286
Telecopier No.: (212) 809-9520
Telephone No.: (212) 635-6407
Attention: Gordon Berger/ Benjamin Balkind
Notice Address for other issues:
One Wall St. - 18th Floor
New York, NY 10286
Telecopier No.: (212) 635-6365
Telephone No.: (212) 635-4699
Attention: Ramona Washington, Agency Function Administration
60
Banks, Lending Offices
and Notice Addresses Commitments
- ---------------------- -----------
BANK OF AMERICA , N.A. $35,000,000
Domestic Lending Office:
901 Main St. - 66th Floor
Dallas, TX 75202
Eurodollar Lending Office:
901 Main St. - 66th Floor
Dallas, TX 75202
Notice Address for Credit Issues:
901 Main St. - 66th Floor
Dallas, TX 75202
Telecopier No.: (214) 209-3742
Telephone No.: (214) 209-0611
Attention: Keith Thompson
Notice Address for other issues:
901 Main St. - 14th Floor
Dallas, TX 75202
Telecopier No.: (214) 290-9486
Telephone No.: (214) 209-3798
Attention: Chris Morris
61
Banks, Lending Offices
and Notice Addresses Commitments
- --------------------- -----------
FLEET NATIONAL BANK $35,000,000
Domestic Lending Office:
Financial Institutions
100 Federal St. - MA DE 10010H
Boston, MA 02110
Eurodollar Lending Office:
Financial Institutions
777 Main St. - CT EH 40225C
Hartford, CT 06115
Notice Address for Credit Issues:
Financial Institutions
100 Federal St. - MA DE 10010H
Boston, MA 02110
Telecopier No.: (617) 434-1096
Telephone No.: (617) 434-3778
Attention: David A. Bosselait, CCM, Director
Notice Address for other issues:
Financial Institutions
777 Main St. - CT EH 40225C
Hartford, CT 06115
Telecopier No.: (860) 986-1264
Telephone No.: (860) 986-5769/ 4616
Attention: Laura McDonough/ Emily Jones
62
Banks, Lending Offices
and Notice Addresses Commitments
- --------------------- -----------
ROYAL BANK OF CANADA $22,500,000
Domestic Lending Office:
New York Branch
1 Liberty Plaza - 4th Floor
New York, NY 10006
Eurodollar Lending Office:
New York Branch
1 Liberty Plaza - 4th Floor
New York, NY 10006
Notice Address for All Issues:
Royal Bank of Canada
New York Branch
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Linda Joannou
Telephone No.: (212) 428-6212
Facsimile No.: (212) 428-2372
WITH A COPY OF ALL NOTICES TO:
Royal Bank of Canada
One Liberty Plaza, 4th Floor
New York, New York 10006-1404
Attention: Vivian Abdelmessih
Telephone No.: (212) 428-6318
Facsimile No.: (212) 428-6201
63
Banks, Lending Offices
and Notice Addresses Commitments
- ---------------------- ------------
MELLON BANK, N.A. $12,500,000
Domestic Lending Office:
Room 4401
One Mellon Center
Pittsburgh, PA 15258-0001
Eurodollar Lending Office:
Room 4401
One Mellon Center
Pittsburgh, PA 15258-0001
Notice Address for Credit Issues:
Room 4401
One Mellon Center
Pittsburgh, PA 15258-0001
Telecopier No.: (412) 234-8087
Telephone No.: (412) 236-0308
Attention: Carrie Burnham
Notice Address for other issues:
Three Mellon Bank Center
Room 1203
Pittsburgh, PA 15259
Telecopier No.: (412) 234-[ ]
Telephone No.: (412) 234-1869
Attention: Charlotte Adams
64
Schedule 1.02
NOTICE OF BORROWING
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, among Reinsurance Group Of America, Incorporated, the banks listed
on the signature pages thereof, The Bank of New York, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, Fleet National Bank, as
Documentation Agent and Royal Bank of Canada, as Co-Agent (the "Credit
Agreement"). The undersigned hereby gives notice pursuant to Section 1.02 of the
Credit Agreement of its request to have the following Loans made to it on
[insert requested date of borrowing]:
Type of Loan(1) Amount
--------------- ------
-------------------------------------- --------------
-------------------------------------- --------------
-------------------------------------- --------------
[Please disburse the proceeds of the Loans by [insert requested
method of disbursement].](2)
- ------------------
1 Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
2 Include and complete this sentence if the proceeds of the requested Loans
are to be disbursed in a manner other than by credit to an account of the
Borrower at the Agent's Office.
65
The undersigned represents and warrants that (a) the borrowing
requested hereby complies with the requirements of the Credit Agreement and (b)
[except to the extent set forth on Annex A hereto,]3 (i) each Representation and
Warranty is true and correct at and as of the date hereof and (except to the
extent the undersigned gives notice to the Banks to the contrary prior to 5:00
p.m. on the Business Day before the requested date for the making of the Loans)
will be true and correct at and as of the time the Loans are made, in each case
both with and without giving effect to the Loans and the application of the
proceeds thereof, and (ii) no Default has occurred and is continuing as of the
date hereof or would result from the making of the Loans or from the application
of the proceeds thereof if the Loans were made on the date hereof, and (except
to the extent the undersigned gives notice to the Banks to the contrary prior to
5:00 p.m. on the Business Day before the requested date for the making of the
Loans) no Default will have occurred and be continuing at the time the Loans are
to be made or would result from the making of the Loans or from the application
of the proceeds thereof.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:_____________________________________
Name:
Title:
- -------------------
3 If the representation and warranty in either clause (b)(i) or (b)(ii) would
be incorrect, include the material in brackets and set forth the reasons such
representation and warranty would be incorrect on an attachment labeled Annex
A.
66
Schedule 1.03(c)(iv)
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, among Reinsurance Group Of America, Incorporated, the banks listed
on the signature pages thereof, The Bank of New York, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, Fleet National Bank, as
Documentation Agent and Royal Bank of Canada, as Co-Agent (the "Credit
Agreement"). The undersigned hereby gives notice pursuant to Section 1.03(c)(iv)
of the Credit Agreement of its desire to convert or continue the Loans specified
below into or as Loans of the Types and in the amounts specified below on
[insert date of conversion or continuation]:
Loans to be Converted or Continued Converted or Continued Loans
---------------------------------- ----------------------------
Last Day of Current
Type of Loan(1) Interest Period Amount Type of Loan(1) Amount
- --------------- --------------- ------ --------------- ------
- --------------- --------------- -------------- -------------- --------------
- --------------- --------------- -------------- -------------- --------------
- --------------- --------------- -------------- -------------- --------------
The undersigned represents and warrants that conversions and
continuations requested hereby comply with the requirements of the Credit
Agreement.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:____________________________________
Name:
Title:
- ------------
1 Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
67
Schedule 1.05(a)
NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in accordance with
Section 9.01(b)]
Date:
Gentlemen:
Reference is made to the Credit Agreement, dated as of
_____________, among Reinsurance Group Of America, Incorporated, the banks
listed on the signature pages thereof, The Bank of New York, as Administrative
Agent, Bank of America, N.A., as Syndication Agent, Fleet National Bank, as
Documentation Agent and Royal Bank of Canada, as Co-Agent (the "Credit
Agreement"). The undersigned hereby gives notice pursuant to Section 1.05 of the
Credit Agreement that it will prepay the Loans specified below on [insert date
of prepayment]:
Last Day of
Current
Type of Loan(1) Interest Period Amount
- --------------- --------------- ------
- -------------------------------------- ---------------- ---------------
- -------------------------------------- ---------------- ---------------
- -------------------------------------- ---------------- ---------------
The undersigned represents and warrants that the prepayment
requested hereby complies with the requirements of the Credit Agreement.
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:____________________________________
Name:
Title:
- ------------------
1 Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
68
Schedule 1.11(e)
Non-US Bank Certificate
Reinsurance Group Of America, Incorporated
The Bank of New York
Gentlemen:
Reference is made to the Credit Agreement, dated as of
__________, among Reinsurance Group Of America, Incorporated, the banks listed
on the signature pages thereof, The Bank of New York, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, Fleet National Bank, as
Documentation Agent and Royal Bank of Canada, as Co-Agent. Terms used herein
that are defined in such Credit Agreement are used with the meanings therein
ascribed to them.
The undersigned hereby (a) certifies to the Borrower and the
Administrative Agent that (i) it is a Non-US Bank and (ii) is entitled to submit
an Internal Revenue Service Form W-8 and (b) agrees to indemnify and defend the
Borrower and the Administrative Agent from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages, and expenses of any
kind arising out of, resulting from, or in any way connected with the
certification made pursuant to clause (a) being incorrect.
Very truly yours,
[Bank]
By:______________________________________
Name:
Title:
69
Schedule 2.01(a)(i)
REINSURANCE GROUP OF AMERICA, INCORPORATED
CERTIFICATE AS TO RESOLUTIONS, ETC.
I, __________, [Assistant] Secretary of Reinsurance Group Of
America, Incorporated, a Missouri corporation (the "Borrower"), hereby certify,
pursuant to Section 2.01(a)(i) of the Credit Agreement dated as of __________,
2000 among Reinsurance Group Of America, Incorporated, the banks listed on the
signature pages thereof, The Bank of New York, as Administrative Agent, Bank of
America, N.A., as Syndication Agent, Fleet National Bank, as Documentation Agent
and Royal Bank of Canada, as Co-Agent, that:
1. The below named persons have been duly elected (or
appointed) and have duly qualified as, and on this day are, officers of
the Borrower holding their respective offices below set opposite their
names, and the signatures below set opposite their names are their
genuine signatures:
Name Office Signature
[Insert names and offices ________________________
of persons authorized to sign ________________________
the Loan Documents] ________________________
2. Attached as Annex A is a true and correct copy of resolutions duly
adopted by the Board of Directors of the Borrower. Such resolutions have not
been amended, modified or revoked and are in full force and effect on the date
hereof.
3. [List Loan Documents to which the Company is a party], in each case as
executed and delivered on behalf of the Borrower, the execution and delivery of
which was approved by the Board of Directors of the Borrower.
4. There has been no amendment to the Certificate of Incorporation of the
Borrower since __________, 2000.(1)
5. Attached as Annex B is a true and correct copy of the By-laws of the
Borrower as in effect on __________, 19__(2) and at all subsequent times to and
including the date hereof.
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1 Insert date of the Secretary of State's Certificate of Incorporation
required by Section 3.01(a)(ii).
2 Insert date of the Board of Directors' meeting adopting the resolutions
referred to in paragraph 2(a).
70
IN WITNESS WHEREOF, I have signed this certificate this __ day
of __________, 19__.
---------------------------
[Assistant] Secretary
I, __________, [title] of the Borrower, hereby certify that
[name of the above [Assistant] Secretary] has been duly elected or appointed and
has been duly qualified as, and on this day is, [Assistant] Secretary of the
Borrower, and the signature in paragraph 1 above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day
of __________, 19__.
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[Title]
71
Schedule 2.01(a)(vi)
[Letterhead of Borrower]
CERTIFICATE OF NEGOTIATING OFFICER
Dated ________________
Reinsurance Group Of America, Incorporated (the "Borrower") is
today entering into a Credit Agreement, dated as of __________ (the "Credit
Agreement") with the banks listed on the signature pages thereof (the "Banks"),
The Bank of New York, as Administrative Agent (the "Administrative Agent"), Bank
of America, N.A., as Syndication Agent, Fleet National Bank, as Documentation
Agent and Royal Bank of Canada, as Co-Agent. I am the [title] of the Borrower
and the officer who was principally involved in negotiating the Credit
Agreement.
I hereby confirm that I have read the Loan Documents and that
I understand that it requires the Borrower to waive any rights it may have to
trial by jury and to claim any special, indirect and consequential damages. I
also confirm that I understand that the Credit Agreement and the Notes embody
the entire agreement among the Borrower, the Administrative Agent and the Banks
and supersedes all prior agreements, representations and understandings relating
to the subject matter thereof.
I further confirm that I have reviewed my understanding of the
Credit Agreement with the General Counsel of the Borrower who have acted as
lawyers for the Borrower in the transaction.
Finally, I confirm that in the course of negotiating the
Credit Agreement I worked principally with Mr. __________ and neither he nor any
other representative of the Administrative Agent or any Bank, nor the lawyers
for the Administrative Agent or any Bank, made any representations to me that
are inconsistent with the terms and provisions of the Credit Agreement.
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72
Schedule 3.02
SCHEDULE OF SUBSIDIARIES
73
Schedule 4.10
SCHEDULE OF EXISTING GUARANTIES
74
Schedule 4.11
SCHEDULE OF EXISTING LIENS
Obligation Secured Collateral
75
Schedule 4.16
SCHEDULE OF EXISTING BENEFIT PLANS
76
Schedule 4.18
SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
77
Schedule 5.02(a)
SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
78
EXHIBIT A
REINSURANCE GROUP OF AMERICA, INCORPORATED
PROMISSORY NOTE
_______________, 19__
FOR VALUE RECEIVED, REINSURANCE GROUP OF AMERICA, INCORPORATED
(the "Borrower") hereby promises to pay to the order of __________ (the "Bank"),
for the account of its applicable Lending Office, the unpaid principal amount of
each Loan made by such Bank under the Credit Agreement referred to below, on the
dates and in the amounts specified in Section 1.04 of such Credit Agreement, and
to pay interest on the principal amount of each such Loan on the dates and at
the rates specified in Section 1.03 of such Credit Agreement. All payments due
the Bank hereunder shall be made to the Bank at the place, in the type of money
and funds and in the manner specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid
attached hereto, or on a continuation thereof, each Loan of the Bank and each
payment, with respect thereto.
Presentment, demand, protest, notice of dishonor and notice of
intent to accelerate are hereby waived by the undersigned.
This Promissory Note evidences Loans made under, and is
entitled to the benefits of, the Credit Agreement, dated as of __________, 19__,
among the Borrower, the banks listed on the signature pages thereof, The Bank of
New York, as Administrative Agent, Bank of America, N.A., as Syndication Agent,
Fleet National Bank, as Documentation Agent and Royal Bank of Canada, as
Co-Agent, as the same may be amended from time to time. Reference is made to
such Credit Agreement, as so amended, for provisions relating to the prepayment
and the acceleration of the maturity hereof.
This Promissory Note shall, pursuant to New York General
Obligations Law Section 5-1401, be governed by the law of the State of New York.
79
[This is a Registered Note, and it and the Loans evidenced
hereby may be assigned or otherwise transferred in whole or in part only by
registration of such assignment or transfer on the Register and compliance with
the other requirements provided for in the Credit Agreement.]
REINSURANCE GROUP OF AMERICA, INCORPORATED
By:_____________________________________
Name:
Title:
80
GRID
PROMISSORY NOTE
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Date Loan Principal Repaid Made By
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