EXHIBIT 10.1
$175,000,000
FIRST AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 23, 2003
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.
Fleet National Bank
as Co-Syndication Agents
KeyBank National Association
as Documentation Agent
BNY CAPITAL MARKETS, INC.
as Lead Arranger
and
BNY CAPITAL MARKETS, INC.
as Book Runner
Table of Contents
Page
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ARTICLE 1
CREDIT FACILITY
Section 1.01. Commitment to Lend............................................................................. 1
Section 1.02. Manner of Borrowing............................................................................ 1
Section 1.03. Interest....................................................................................... 2
(a) Rates ................................................................................... 2
(b) Payment.................................................................................. 3
(c) Conversion and Continuation.............................................................. 3
(d) Maximum Interest Rate.................................................................... 4
Section 1.04. Repayment...................................................................................... 4
Section 1.05. Prepayments.................................................................................... 4
(a) Optional Prepayments..................................................................... 4
(b) Mandatory Partial Repayment.............................................................. 4
Section 1.06. Limitation on Types of Loans................................................................... 5
Section 1.07. Changes in Commitments......................................................................... 5
(a) Optional Reduction....................................................................... 5
(b) Automatic Reduction...................................................................... 5
Section 1.08. Fees........................................................................................... 5
(a) Facility Fees............................................................................ 5
(b) Administrative Agent's Fees.............................................................. 5
(c) Utilization Fees......................................................................... 5
(d) Fees Non-Refundable...................................................................... 6
Section 1.09. Computation of Interest and Fees............................................................... 6
Section 1.10. Evidence of Indebtedness....................................................................... 6
Section 1.11. Payments by the Borrower....................................................................... 6
(a) Time, Place and Manner................................................................... 6
(b) No Reductions............................................................................ 6
(c) Taxes.................................................................................... 6
(d) Taxes Payable by the Administrative Agent or any Bank.................................... 7
(e) Exemption from U.S. Withholding Taxes.................................................... 7
(f) Authorization to Charge Accounts......................................................... 8
(g) Extension of Payment Dates............................................................... 8
Section 1.12. Distribution of Payments by the Administrative Agent........................................... 8
Section 1.13. Pro Rata Treatment............................................................................. 9
ARTICLE 2
CONDITIONS TO EFFECTIVENESS OF AGREEMENT AND LOANS
Section 2.01. Conditions to Effectiveness of Agreement and Initial Loans.................................... 9
Section 2.02. Conditions to Each Loan....................................................................... 10
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01. Organization; Power; Qualification............................................................ 11
Section 3.02. Subsidiaries.................................................................................. 11
Section 3.03. Authorization; Enforceability; Required Consents; Absence of Conflicts........................ 11
Section 3.04. Taxes......................................................................................... 12
Section 3.05. Litigation.................................................................................... 12
Section 3.06. Burdensome Provisions......................................................................... 12
Section 3.07. No Adverse Change or Event.................................................................... 12
Section 3.08. Additional Adverse Facts...................................................................... 12
Section 3.09. Investment Company Act........................................................................ 13
Section 3.10. Pari Passu Status............................................................................. 13
ARTICLE 4
CERTAIN COVENANTS
Section 4.01. Preservation of Existence..................................................................... 13
Section 4.02. Preservation of Rights and Properties......................................................... 13
Section 4.03. Business Activities........................................................................... 13
Section 4.04. Payment of Taxes and Liabilities.............................................................. 13
Section 4.05. Compliance With Applicable Laws and Contracts................................................. 13
Section 4.06. Preservation of Loan Document Enforceability.................................................. 13
Section 4.07. Insurance..................................................................................... 14
Section 4.08. Use of Proceeds............................................................................... 14
Section 4.09. Indebtedness.................................................................................. 14
Section 4.10. Guaranties.................................................................................... 14
Section 4.11. Liens......................................................................................... 14
Section 4.12. Restricted Payments........................................................................... 14
Section 4.13. Merger or Consolidation....................................................................... 14
Section 4.14. Disposition of Assets......................................................................... 15
Section 4.15. Taxes of Other Persons........................................................................ 15
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Section 4.16. Benefit Plans................................................................................. 15
Section 4.17. Transactions with Affiliates.................................................................. 15
Section 4.18. Limitation on Restrictive Covenants........................................................... 15
Section 4.19. Issuance or Disposition of Capital Securities................................................. 15
Section 4.20. Acquisitions.................................................................................. 16
Section 4.21. Ratio of Consolidated Indebtedness to Consolidated Net Worth.................................. 16
Section 4.22. Statutory Surplus............................................................................. 16
Section 4.23. Minimum Total Adjusted Capital................................................................ 16
ARTICLE 5
INFORMATION
Section 5.01. Information to Be Furnished................................................................... 16
(a) Quarterly Financial Statements.......................................................... 16
(b) Year-End Financial Statements........................................................... 17
(c) Officer's Certificate as to Financial Statements and Defaults........................... 17
(d) Statutory Statements.................................................................... 17
(e) Year-End Statutory Statements........................................................... 18
(f) Reports and Filings..................................................................... 18
(g) Requested Information................................................................... 18
(h) Notice of Defaults, Material Adverse Changes and Other Matters.......................... 18
Section 5.02. Accuracy of Financial Statements and Information.............................................. 19
(a) Historical Financial Statements......................................................... 19
(b) Future Financial Statements............................................................. 19
(c) Historical Information.................................................................. 19
(d) Future Information...................................................................... 20
Section 5.03. Additional Covenants Relating to Disclosure................................................... 20
(a) Accounting Methods and Financial Records................................................ 20
(b) Fiscal Year............................................................................. 20
(c) Visits, Inspections and Discussions..................................................... 20
Section 5.04. Authorization of Third Parties to Deliver Information and Discuss Affairs..................... 21
ARTICLE 6
DEFAULT
Section 6.01. Events of Default............................................................................. 21
Section 6.02. Remedies upon Event of Default................................................................ 24
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ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01. Mandatory Suspension and Conversion of Eurodollar Rate Loans.................................. 24
Section 7.02. Regulatory Changes............................................................................ 25
Section 7.03. Capital Requirements.......................................................................... 26
Section 7.04. Funding Losses................................................................................ 26
Section 7.05. Certain Determinations........................................................................ 26
Section 7.06. Change of Lending Office...................................................................... 27
ARTICLE 8
THE ADMINISTRATIVE AGENT
Section 8.01. Appointment and Powers........................................................................ 27
Section 8.02. Limitation on Administrative Agent's Liability................................................ 27
Section 8.03. Certain Actions............................................................................... 28
(a) Defaults................................................................................ 28
(b) Change of Control....................................................................... 28
Section 8.04. Rights as a Bank.............................................................................. 28
Section 8.05. Indemnification............................................................................... 29
Section 8.06. Non-Reliance on Administrative Agent and Other Banks.......................................... 29
Section 8.07. Resignation of the Administrative Agent....................................................... 29
ARTICLE 9
MISCELLANEOUS
Section 9.01. Notices and Deliveries........................................................................ 30
(a) Manner of Delivery...................................................................... 30
(b) Addresses............................................................................... 30
(c) Effectiveness........................................................................... 31
(d) Reasonable Notice....................................................................... 32
Section 9.02. Expenses; Indemnification..................................................................... 32
Section 9.03. Amounts Payable Due upon Request for Payment.................................................. 33
Section 9.04. Remedies of the Essence....................................................................... 33
Section 9.05. Rights Cumulative............................................................................. 33
Section 9.06. Amendments; Waivers........................................................................... 33
Section 9.07. Set-Off; Suspension of Payment and Performance................................................ 34
Section 9.08. Sharing of Recoveries......................................................................... 34
Section 9.09. Assignments and Participations................................................................ 35
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(a) Assignments............................................................................. 35
(b) Participations.......................................................................... 36
Section 9.10. Governing Law................................................................................. 36
Section 9.11. Judicial Proceedings; Waiver of Jury Trial.................................................... 36
Section 9.12. LIMITATION OF LIABILITY....................................................................... 37
Section 9.13. Severability of Provisions.................................................................... 37
Section 9.14. Counterparts.................................................................................. 37
Section 9.15. Survival of Obligations....................................................................... 37
Section 9.16. Entire Agreement.............................................................................. 37
Section 9.17. Successors and Assigns........................................................................ 37
Section 9.18. Registered Notes.............................................................................. 38
Section 9.19. No Obligations................................................................................ 38
Section 9.20. No Fiduciary Relationship Established By Loan Documents....................................... 38
Section 9.21. Conditions to Effectiveness................................................................... 38
ARTICLE 10
INTERPRETATION
Section 10.01. Defined Terms................................................................................. 38
Section 10.02. Other Interpretive Provisions................................................................. 54
Section 10.03. Accounting Matters............................................................................ 55
Section 10.04. Representations and Warranties................................................................ 56
Section 10.05. Captions...................................................................................... 56
Section 10.06. Interpretation of Related Documents........................................................... 56
Annex A Bank Commitments And Notice Addresses
Schedule 1.02 Form of Notice of Borrowing
Schedule 1.03(c)(iv) Form of Notice of Conversion Or Continuation
Schedule 1.05(a) Form of Notice of Prepayment
Schedule 1.11(e) Form of Non-US Bank Certificate
Schedule 2.01(a)(i) Form of Borrower's Secretary's Certificate
Schedule 2.01(a)(vi) Form of officer's Certificate Regarding Negotiations
Schedule 3.02 Schedule of Subsidiaries
Schedule 4.10 Schedule of Existing Guaranties
Schedule 4.11 Schedule of Existing Liens
Schedule 4.16 Schedule of Existing Benefit Plans
Schedule 4.18 Schedule of Existing Restrictive Covenants
Schedule 5.02(a) Schedule of Historical Financial Information
Schedule 10.01 Description of Trust Preferred Securities Transaction
And Related Documentation
Exhibit A Form of Promissory Note
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FIRST AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 23, 2003,
among REINSURANCE GROUP OF AMERICA, INCORPORATED, as Borrower, the BANKS, THE
BANK OF NEW YORK, as Administrative Agent, Bank of America, N.A. and Fleet
National Bank, as Co-Syndication Agents and KeyBank National Association, as
Documentation Agent.
WHEREAS, the Borrower, the several banks listed on the signature pages
thereof (each a "2000 Bank"), and The Bank of New York, as Administrative Agent,
Bank of America, N.A., as Syndication Agent, Fleet Bank Boston, as Documentation
Agent and Royal Bank of Canada, as Co-Agent entered into that certain Credit
Agreement dated as of May 24, 2000 (as amended to but not including the date
hereof, the "Existing Credit Agreement"); and
WHEREAS, the Banks wish to extend, and certain of the Banks, pursuant
to the Existing Credit Agreement, have extended, credit to the Borrower by the
making of loans to the Borrower and the Borrower has requested that the Existing
Credit Agreement be amended and restated in its entirety pursuant to this
Agreement in order to provide for such loans and the other matters contained
herein.
NOW, THEREFORE, the Borrower, the Banks, The Bank of New York, as
Administrative Agent, Bank of America, N.A. and Fleet National Bank, as
Co-Syndication Agents and KeyBank National Association, as Documentation Agent,
agree that the Existing Credit Agreement shall be amended and restated in its
entirety 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 $175,000,000.
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.
(c) If a Bank shall have received notice of the making of
Loans in accordance with Section 1.02(a) 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
2
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
(i) Loans that are (A) Base Rate Loans, on each Interest Payment Date and (B)
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), (ii) any Loan, when such Loan
shall be due (whether at maturity, by reason of notice of prepayment or
acceleration or otherwise) or converted, but only to the extent then accrued on
the amount then so due or converted, and (iii) 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
3
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 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,
4
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. Changes in 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) each
partial reduction of the Commitments shall be in an aggregate amount of
$10,000,000 or an integral multiple 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 equal to 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) Utilization Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a utilization fee in the
amount equal to 0.125% per annum of the daily amount of the utilized Commitments
for each day on which the utilized Commitments exceed 33.3% of the Commitments,
payable on successive Interest Payment Dates, on the Termination Date and on the
date of repayment or prepayment of the Loans (if the utilized Commitments
exceeded 33.3% immediately prior to such repayment or prepayment of the amount
so being repaid or prepaid).
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(d) 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, the facility
fees and the utilization 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 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
6
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).
(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 all 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
7
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 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
8
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 EFFECTIVENESS of AGREEMENT and LOANS
Section 2.01. Conditions to Effectiveness of Agreement and Initial
Loans. The effectiveness of this Agreement and the obligation of each Bank to
make its initial Loan under this Agreement 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:
(i) a certificate of the secretary or an assistant
secretary of the Borrower, dated the Agreement Date, 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 Agreement Date, as to such matters as the Banks may
reasonably request;
(v) an opinion of counsel for the Administrative Agent,
dated the Agreement Date, 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;
9
(viii) such additional materials as any Bank may have
requested pursuant to Section 5.01(g);
(b) all fees payable on or prior to the Agreement Date
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,
including, but not limited to, fees and expenses of legal counsel to the
Administrative Agent, 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 effectiveness of this Agreement.
(c) The Borrower shall have requested initial Loans
hereunder to be made on the Agreement Date in such amounts as necessary such
that after the making of such Loans (i) all loans, fees, expenses and other
amounts owing under the Existing Credit Agreement to any 2000 Bank which is not
a Bank hereunder shall have been paid in full and (ii) the outstanding Loans
hereunder shall be held by Banks pro rata based on their respective Commitments.
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;
(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
10
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 (or, in the case of RGA Capital Trust I, RGA Sigma
Reinsurance SPC and RGA Financial Group, L.L.C., legal entities) duly organized,
validly existing and in good standing under the laws of their respective
jurisdictions of incorporation or organization, have the 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, 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 or
organization and the percentages of the various classes of 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,
11
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. Each of the Borrower, each Material Subsidiary and
each Domestic Subsidiary has (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.
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, 2002, 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.
12
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 or, in the case of entities that are not corporations,
preserve and maintain its existence as a legal entity under the laws of the
jurisdiction in which it is organized, except that this Section 4.01 shall not
apply to termination of its 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 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
13
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.
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
14
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%.
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
Securities 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
15
Subsidiary, (e) any issuance by a Subsidiary that is not a Material Subsidiary
of less than 50% of its Capital Securities, and (f) any issuance by an RGA Trust
of Trust Preferred 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, 2002 and (b) the sum of any contribution made to
the capital or surplus of RGA Canada after December 31, 2002 and the greater of
(i) any contributions made to the capital or surplus of RGA Re and (ii) any
contributions, net of approximately simultaneous surplus note interest payments,
made to the capital or surplus of RCM, in each case, after December 31, 2002;
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
16
year of the Borrower, commencing with the quarterly period ended March 31, 2003,
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, 2003, (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.
(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, 2003 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.
17
(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, 2003
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.
(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
18
(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, 2002,
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 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
19
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:
(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,
20
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.
Notwithstanding anything to the contrary set forth herein or in any other
agreement to which any the parties hereto are parties or by which they are
bound, the Administrative Agent and each Bank may disclose to any and all
persons, without limitation of any kind, any information with respect to the
U.S. federal income tax treatment and U.S. federal income tax structure of the
transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent or
such Bank relating to such tax treatment and tax structure.
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. 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:
21
(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 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, 2002, 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,
22
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
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
23
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 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) Any of 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 (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
24
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 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
25
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.
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
26
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.
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
27
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 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
28
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 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
29
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 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:
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The Bank of New York
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:
The Bank of New York
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
Co-Syndication Agent or Documentation 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;
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
31
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 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
32
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.
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, any Co-Syndication Agent or the Documentation 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 or other amounts 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 or other amounts 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
33
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 hereof, 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 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
34
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.
(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 or such assignment is to a Bank) 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
35
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, any Co-Syndication Agent, the Documentation 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
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;
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.
Section 9.10. Governing Law. The rights and duties of the Borrower, the
Administrative Agent, any Co-Syndication Agent, the Documentation 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
36
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
CO-SYNDICATION AGENTS, THE DOCUMENTATION 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
CO-SYNDICATION AGENTS, THE DOCUMENTATION 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.
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
Co-Syndication Agents, the Documentation 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.
37
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 Co-Syndication Agents or the
Documentation 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
Loan Documents.
Section 9.21. Conditions to Effectiveness. (a) This Agreement shall
become effective on the date hereof (the "Effective Date"), provided that (i)
this Agreement shall have been duly executed by the parties hereto and (ii) the
conditions precedent to the initial Loans under Article 2 hereof shall have been
satisfied, at which time the Existing Credit Agreement shall be amended and
restated by this Agreement. If no Effective Date shall occur, the Existing
Credit Agreement shall remain in full force and effect according to its terms.
(b) Upon the Effective Date, each 2000 Bank shall be released
from all duties and obligations under the Existing Credit Agreement and, except
in the case of any Bank, shall have no further duties or obligations under this
Agreement.
ARTICLE 10
INTERPRETATION
Section 10.01. Defined Terms. For the purposes of this Agreement:
"2000 Bank" has the meaning ascribed to that term in the Recitals
hereto.
"Accumulated Funding Deficiency" has the meaning ascribed to that term
in Section 302 of ERISA.
"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.
38
"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 26, 2003
between the Borrower, The Bank of New York and BNY Capital Markets, Inc.
"Agreement" means this First Amended and Restated Credit Agreement,
including all schedules, annexes and exhibits hereto.
"Agreement Date" means 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 of the Borrower in effect on such date 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,
"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
39
"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 an 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 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 0.50%.
"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.
40
"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-Syndication Agents" means Bank of America, N.A. and Fleet National
Bank, as syndication agents 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,
increased or added from time to time pursuant to Section 1.07 or increased or
reduced from time to time pursuant to assignments in accordance with Section
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 (i) 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, (ii) the obligation of the
Borrower under any Insurance Subsidiary Guaranty to the extent no demand has
been made or deemed made on such Insurance Subsidiary Guaranty and (iii) the
aggregate outstanding Indebtedness evidenced by the Trust Preferred Securities
to the extent the accreted value of such Indebtedness does not exceed the TPS
Exclusion Amount.
41
"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)
less their consolidated Mandatorily Redeemable Stock (except to the extent
deducted in determining such consolidated stockholders' equity) plus the
aggregate outstanding amount of Trust Preferred Securities not in excess of the
TPS Exclusion Amount, 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 KeyBank National Association, 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 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
42
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.
"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.
43
"Existing Credit Agreement" has the meaning ascribed to that term in
the Recitals hereto.
"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.
"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.
44
"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, a Co-Syndication Agent, the Documentation Agent, a Bank,
an Affiliate of the Administrative Agent, a Co-Syndication Agent, the
Documentation 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.
"Insurance Subsidiary Guaranty" means any Guaranty issued by the
Borrower guaranteeing the liability of any Subsidiary that is an Insurance
Company in respect of any reinsurance underwritten by such Subsidiary.
"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
45
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 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,
46
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.
"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.
47
"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, (b) is a Guaranty of
and only of the obligations of the Borrower under the Loan Documents, (c)
constitutes Indebtedness for purposes of calculating the covenant in Section
4.21, (d) is a Trust Guaranty, (e) is an Insurance Subsidiary Guaranty or (f) 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 $25,000,000.
"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; (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
48
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 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
49
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, (f) any
covenant or restriction of the type contained in Section 4.11 that is contained
in (i) the documents governing the senior notes issued by the Borrower on or
about March 22, 1996, or (ii) the indenture governing the senior notes issued by
the Borrower on or about December 18, 2001, in each case to the extent such
covenant or restriction limits the ability of any Subsidiary to create any Lien
on the Capital Securities of any other Subsidiary held by such Subsidiary, or
(g) 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 (g), (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, limited liability company, 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 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
50
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.
"Repayment Notice" shall have the meaning ascribed thereto in Section
8.03(b).
"Reportable Event" means, with respect to any Benefit Plan of any
Person, (a) the occurrence of any of the events set forth in ERISA Section
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 Section 401(a)(29) or (e) any failure
to make a payment required by Code Section 412(m) with respect to such Benefit
Plan.
51
"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 aggregate 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.
"RGA Trust" means either RGA Capital Trust I or RGA Capital Trust II,
in each case a Wholly Owned Subsidiary of the Borrower formed solely for the
purpose of issuing Trust Preferred Securities.
"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.
52
"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 Ratings
Group, a division of The McGraw-Hill Companies, Inc. 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.
"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 the 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.
"TPS Exclusion Amount" means, on the date of determination, an amount
equal to 15% of the sum of (i) the accreted value of the Trust Preferred
Securities outstanding on such date, (ii) Consolidated Indebtedness as of such
date (excluding, to the extent otherwise included, the Trust Preferred
Securities) and (iii) the Consolidated Net Worth as of such date (excluding, to
the extent otherwise included, the Trust Preferred Securities).
"Trust Guaranty" means the guarantee issued by the Borrower in
connection with the Trust Preferred Securities Transaction substantially as
described on Schedule 10.01 hereto.
"Trust Preferred Securities" means the Trust Preferred Securities
referred to and substantially as described on Schedule 10.01 hereto.
53
"Trust Preferred Securities Documentation" means the agreements,
instruments and other documents pursuant to which the RGA Trust is established
and funded and the Trust Preferred Securities are issued, in each case
substantially in the form and substance as described on Schedule 10.01 hereto,
as reasonably determined by the Administrative Agent, as such documentation may
be waived, amended or otherwise modified from time to time with the consent of
the Administrative Agent, which consent will not be unreasonably withheld.
"Trust Preferred Securities Transaction" means the transactions leading
to the issuance of the Trust Preferred Securities, including the formation of
the Trust, the issuance of the Trust Guaranty and the issuance of the Trust
Preferred Securities.
"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 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
54
"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.
(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.
55
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 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]
56
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: /s/ Todd C. Larson
--------------------------
Name: Todd C. Larson
Title: Senior Vice President, Controller, and
Treasurer
THE BANK OF NEW YORK
as Administrative Agent and as a Bank
By: /s/ Evan Glass
-------------------
Name: Evan Glass
Title: Vice President
BANK OF AMERICA, N.A.
as Co-Syndication Agent and as a Bank
By: /s/ Leslie Nannen
--------------------
Name: Leslie Nannen
Title: Vice President
FLEET BANK BOSTON
as Co-Syndication Agent and as a Bank
By: /s/ Esteban V. Koosau
---------------------
Name: Esteban V. Koosau
Title: Senior Associate
KEYBANK NATIONAL ASSOCIATION
as Documentation Agent and as a Bank
By: /s/ Mary K. Young
-----------------
Name: Mary K. Young
Title: Vice President
ROYAL BANK OF CANADA
as a Bank
By: /s/ Gabriella King
-------------------
Name: Gabriella King
Title: Senior Manager
STATE STREET BANK AND TRUST
COMPANY
as a Bank
By: /s/ Lise Anne Boutiette
------------------------
Name: Lise Anne Boutiette
Title: Vice President
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
Banks, Lending Offices
and Notice Addresses Commitments
BANK OF AMERICA, N.A. $35,000,000
Domestic Lending Office:
1850 Gateway Blvd.
CA4-706-05-11
Concord, CA 94520-3282
Eurodollar Lending Office:
1850 Gateway Blvd.
CA4-706-05-11
Concord, CA 94520-3282
Notice Address for Credit Issues:
901 Main St. - 66th Floor
Dallas, TX 75202
Telecopier No.: (214) 209-3742
Telephone No.: (214) 209-0619
Attention: Leslie Nannen
Notice Address for other issues:
1850 Gateway Blvd.
CA4-706-05-11
Concord, CA 94520-3282
Telecopier No.: (925) 675-8312
Telephone No.: (888) 969-9238
Attention: Anna Finn
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
Banks, Lending Offices
and Notice Addresses Commitments
KEYBANK NATIONAL ASSOCIATION $35,000,000
Domestic Lending Office:
127 Public Square
Cleveland, Ohio 44114
Telecopier No.: (216) 689-4981
Telephone No.: (216) 689-4448
Attention: Laura Binkley
Eurodollar Lending Office:
127 Public Square
Cleveland, Ohio 44114
Telecopier No.: (216) 689-4981
Telephone No.: (216) 689-4448
Attention: Laura Binkley
Notice Address for Credit Issues:
127 Public Square
Cleveland, Ohio 44114
Telecopier No.: (216) 689-4981
Telephone No.: (216) 689-4443
Attention: Mary Young
Notice Address for other issues:
127 Public Square
Cleveland, Ohio 44114
Telecopier No.: (216) 689-4981
Telephone No.: (216) 689-4443
Attention: Mary Young
Banks, Lending Offices
and Notice Addresses Commitments
ROYAL BANK OF CANADA $20,000,000
Domestic Lending Office:
New York Branch
1 Liberty Plaza - 3rd Floor
New York, NY 10006-1404
Eurodollar Lending Office:
New York Branch
1 Liberty Plaza - 3rd Floor
New York, NY 10006-1404
Notice Address for All Issues:
Royal Bank of Canada
New York Branch
One Liberty Plaza, 3rd Floor
New York, New York 10006-1404
Attention: Karim Amr
Telephone No.: (212) 428-6369
Facsimile No.: (212) 428-2372
WITH A COPY OF ALL NOTICES TO:
Royal Bank of Canada
One Liberty Plaza, 3rd Floor
New York, New York 10006-1404
Attention: Gabriella King
Telephone No.: (212) 428-6318
Facsimile No.: (212) 428-6201
Banks, Lending Offices
and Notice Addresses Commitments
STATE STREET BANK AND TRUST COMPANY $15,000,000
Domestic Lending Office:
225 Franklin Street
Boston, MA 02110
Eurodollar Lending Office:
225 Franklin Street
Boston, MA 02110
Notice Address for Credit Issues:
State Street Bank and Trust Company
Insurance Credit Services
2 Avenue de Lafayette-LCC2N
Boston, MA 02111
Telecopier No.: 617-662-3778
Telephone No.: 617-662-3262
Attention: Lise Anne Boutiette, VP
Notice Address for other issues:
State Street Bank and Trust Company
Insurance Credit Services
2 Avenue de Lafayette-LCC2N
Boston, MA 02111
Telecopier No.: 617-662-3778
Telephone No.: 617-662-3262
Attention: Lise Anne Boutiette, VP
Schedule 1.02
FORM OF NOTICE OF BORROWING
The Bank of New York
One Wall St. - 18th Floor
New York, NY 10286
Attention: Ramona Washington, Agency Function Administration
The Bank of New York
One Wall St. - 17th Floor
New York, NY 10286
Attention: Benjamin Balkind
Date:
Ladies and Gentlemen:
Reference is made to the First Amended and Restated Credit Agreement,
dated as of May 23, 2003, 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. and Fleet National Bank, as
Co-Syndication Agents and KeyBank National Association, as Documentation Agent
(as in effect on the date hereof, 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 Administrative Agent's Office.
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.
Schedule 1.03(c)(iv)
FORM OF NOTICE OF CONVERSION OR CONTINUATION
The Bank of New York
One Wall St. - 18th Floor
New York, NY 10286
Attention: Ramona Washington, Agency Function Administration
The Bank of New York
One Wall St. - 17th Floor
New York, NY 10286
Attention: Benjamin Balkind
Date:
Ladies and Gentlemen:
Reference is made to the First Amended and Restated Credit Agreement,
dated as of May 23, 2003, 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. and Fleet National Bank, as
Co-Syndication Agents and KeyBank National Association, as Documentation Agent
(as in effect on the date hereof, 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.
- ------------------------
(1) Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
REINSURANCE GROUP OF AMERICA,
INCORPORATED
By: ___________________________________
Name:
Title:
Schedule 1.05(a)
FORM OF NOTICE OF PREPAYMENT
The Bank of New York
One Wall St. - 18th Floor
New York, NY 10286
Attention: Ramona Washington, Agency Function Administration
The Bank of New York
One Wall St. - 17th Floor
New York, NY 10286
Attention: Benjamin Balkind
Date:
Ladies and Gentlemen:
Reference is made to the First Amended and Restated Credit Agreement,
dated as of May 23, 2003, 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. and Fleet National Bank, as
Co-Syndication Agents and KeyBank National Association, as Documentation Agent
(as in effect on the date hereof, 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
- ------------------------
(1) Be sure to specify the duration of the Interest Period in the case of
Eurodollar Rate Loans (e.g., one-month Eurodollar Rate).
By: ___________________________________
Name:
Title:
Schedule 1.11(e)
Form of Non-US Bank Certificate
Reinsurance Group of America, Incorporated
The Bank of New York
Gentlemen:
Reference is made to the First Amended and Restated Credit Agreement,
dated as of May 23, 2003, 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. and Fleet National Bank, as
Co-Syndication Agents and KeyBank National Association, as Documentation 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) it 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:
Schedule 2.01(a)(i)
REINSURANCE GROUP OF AMERICA, INCORPORATED
FORM OF 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 May 23, 2003 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. and Fleet National Bank, as Co-Syndication Agents and KeyBank National
Association, as Documentation 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. The execution and delivery of [List Loan Documents to
which the Company is a party], in each case as executed and delivered
on behalf of the Borrower, 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 __________, 200__.(1)
5. Attached as Annex B is a true and correct copy of the
By-laws of the Borrower as in effect on __________, 200_(2) and at all
subsequent times to and including the date hereof.
- ---------------------
(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).
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 200__.
_______________________________________
[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
__________, 200__.
_______________________________________
[Title]
Schedule 2.01(a)(vi)
[Letterhead of Borrower]
FORM OF 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. and Fleet National Bank, as Co-Syndication Agents and KeyBank
National Association, as Documentation 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 ______________ and neither [s/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.
Schedule 3.02
SCHEDULE OF SUBSIDIARIES
Schedule 4.10
SCHEDULE OF EXISTING GUARANTIES
Schedule 4.11
SCHEDULE OF EXISTING LIENS
Obligation Secured Collateral
Schedule 4.16
SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 4.18
SCHEDULE OF EXISTING RESTRICTIVE COVENANTS
Schedule 5.02(a)
SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.01
DESCRIPTION OF TRUST PREFERRED SECURITIES TRANSACTION
AND RELATED DOCUMENTATION
EXHIBIT A
REINSURANCE GROUP OF AMERICA, INCORPORATED
PROMISSORY NOTE
_______________, 200___
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 First Amended and Restated Credit Agreement, dated as of May
23, 2003, among the Borrower, the banks listed on the signature pages thereof,
The Bank of New York, as Administrative Agent, Bank of America, N.A. and Fleet
National Bank, as Co-Syndication Agents and KeyBank National Association, as
Documentation 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.
[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:
GRID
PROMISSORY NOTE
_______________________________________________________________________________________________
Amount of Amount of Notation
Date Loan Principal Repaid Made By
---- ---- ---------------- -------
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
_______________________________________________________________________________________________
1