Exhibit 4.11
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GUARANTEE AGREEMENT
BETWEEN
REINSURANCE GROUP OF AMERICA, INCORPORATED,
AS GUARANTOR
AND
THE BANK OF NEW YORK,
AS GUARANTEE TRUSTEE
DATED AS OF DECEMBER 18, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Interpretation.................................................1
SECTION 1.2. Definitions....................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act, Application...............................6
SECTION 2.2. Lists of Holders of Securities.................................6
SECTION 2.3. Reports by the Guarantee Trustee...............................6
SECTION 2.4. Periodic Reports to the Guarantee Trustee......................7
SECTION 2.5. Evidence of Compliance with Conditions Precedent...............7
SECTION 2.6. Events of Default; Waiver......................................7
SECTION 2.7. Event of Default; Notice.......................................7
SECTION 2.8. Conflicting Interests..........................................7
SECTION 2.9. Disclosure of Information......................................8
SECTION 2.10. Guarantee Trustee May File Proofs of Claim.....................8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee.....................8
SECTION 3.2. Certain Rights of Guarantee Trustee............................9
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.........11
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility................................12
SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustee.....12
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee.....................................................13
SECTION 5.2. Waiver of Notice and Demand...................................13
SECTION 5.3. Obligations Not Affected......................................14
SECTION 5.4. Rights of Holders.............................................15
SECTION 5.5. Guarantee of Payment..........................................15
SECTION 5.6. Subrogation...................................................15
SECTION 5.7. Independent Obligations.......................................15
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions.....................................16
SECTION 6.2. Ranking........................................................17
ARTICLE VII
TERMINATION
SECTION 7.1. Termination....................................................17
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation....................................................17
SECTION 8.2. Indemnification................................................18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns.........................................18
SECTION 9.2. Amendments.....................................................18
SECTION 9.3. Notices........................................................19
SECTION 9.4. Benefit........................................................20
SECTION 9.5. Governing Law..................................................20
SECTION 9.6. Counterparts...................................................20
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This GUARANTEE AGREEMENT (the "GUARANTEE"), dated as of December 18,
2001, is executed and delivered by Reinsurance Group of America, Incorporated, a
Missouri corporation (the "COMPANY"), as Guarantor (the "GUARANTOR"), and The
Bank of New York, a New York banking corporation, as trustee (the "GUARANTEE
TRUSTEE"), for the benefit of the Holders (as defined herein) from time to time
of the Securities (as defined herein) of RGA Capital Trust I, a Delaware
statutory business trust (the "ISSUER").
WHEREAS, pursuant to an Amended and Restated Trust Agreement of RGA
Capital Trust I (the "TRUST Agreement"), dated as of December 18, 2001, among
the Company, as Sponsor, ▇▇▇▇ ▇. ▇▇▇, A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, as
the initial Administrative Trustees, The Bank of New York, as the initial
Property Trustee, and The Bank of New York (Delaware), as the initial Delaware
Trustee, the Issuer is issuing on the date hereof 4,500,000 preferred
securities, stated liquidation amount of $50 per preferred security (the
"PREFERRED SECURITIES") (or up to 5,175,000 Preferred Securities if the
Underwriters' option to purchase additional Units (as defined below), as set
forth in the Underwriting Agreement, is exercised), having an aggregate
liquidation amount of $225,000,000 (or up to $258,750,000 to the extent the
Underwriters' option to purchase additional Units, as set forth in the
Underwriting Agreement, is exercised), and 139,176 common securities, stated
liquidation amount of $50 per common security (the "COMMON SECURITIES" and,
together with the Preferred Securities, the "SECURITIES") (or up to 160,053 to
the extent the Underwriters' option to purchase additional Units, as set forth
in the Underwriting Agreement, is exercised), having an aggregate stated
liquidation amount of $6,958,800 (or up to $8,002,650 to the extent the
Underwriters' option to purchase additional Units, as set forth in the
Underwriting Agreement, is exercised); and
WHEREAS, as incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay in full to the Holders the Guarantee Payments
(as defined below) and to make certain other payments on the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder, which
purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the
Guarantor executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Interpretation
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in Section 1.2;
(b) terms defined in the Trust Agreement as at the date of execution of
this Guarantee have the same meaning when used in this Guarantee unless
otherwise defined in this Guarantee;
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(c) a term defined anywhere in this Guarantee has the same meaning
throughout;
(d) all references to "this Guarantee" are to this Guarantee as
modified, supplemented or amended from time to time;
(e) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee, unless otherwise defined in this Guarantee or unless the
context otherwise requires; and
(g) a reference to the singular includes the plural and vice versa.
(h) any reference herein to an agreement entered into in connection
with the issuance of securities contemplated herein as of the date hereof shall
mean such agreement as it may be amended, modified or supplemented in
accordance with its terms.
SECTION 1.2. Definitions
The following terms have the following meanings:
"ACCRETED VALUE" has the meaning set forth in the Trust Agreement.
"AFFILIATE" has the same meaning as given to that term in Rule 405
under the Securities Act of 1933, as amended, or any successor rule thereunder.
"BUSINESS DAY" has the meaning set forth in the Trust Agreement.
"CHANGE OF CONTROL REPURCHASE PRICE" has the meaning set forth in the
Trust Agreement.
"COMMON SECURITIES" has the meaning set forth in the Recitals hereto.
"CORPORATE TRUST OFFICE" means the office of the Guarantee Trustee at
which the corporate trust business of the Guarantee Trustee shall, at any
particular time, be principally administered, which office at the date of
execution of this Agreement is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"COVERED PERSON" means any Holder or beneficial owner of Securities.
"DEBENTURE ISSUER" has the meaning set forth in the Trust Agreement.
"DEBENTURE TRUSTEE" has the meaning set forth in the Trust Agreement.
"DEBENTURES" means the series of subordinated debt securities of the
Company designated the 5.75% Junior Subordinated Deferrable Interest Debentures
due 2051, to be purchased by the Issuer and held by the Property Trustee.
"DISTRIBUTION" has the meaning set forth in the Trust Agreement.
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"EVENT OF DEFAULT" means a failure by the Guarantor to perform any of
its payment or other obligations under this Guarantee.
"FIRST SUPPLEMENTAL INDENTURE" means the First Supplemental Indenture,
dated as of December 18, 2001, between the Debenture Issuer and the Debenture
Trustee.
"GUARANTEE" has the meaning set forth in the Preamble hereto.
"GUARANTEE PAYMENTS" means the following payments or distributions,
without duplication, with respect to the Securities on a pro rata basis, to the
extent not paid or made by or on behalf of the Issuer:
(i) any accumulated and unpaid Distributions (as defined in the Trust
Agreement) that are required to be paid on such Securities to the extent
the Issuer has funds legally available therefor;
(ii) the Redemption Price (as defined in the Trust Agreement), with
respect to the Securities in respect of which the related Debentures have
been called for redemption, to the extent the Issuer has funds legally
available therefor;
(iii) the Change of Control Repurchase Price (as defined in the Trust
Agreement), with respect to the Preferred Securities of Holders which
exercised their right pursuant to Section 6.8 of the Trust Agreement to
require the Trust to exchange their Preferred Securities for Debentures and
to require the Debenture Issuer to repurchase the Debentures which such
Holders have received in exchange for their Preferred Securities, to the
extent the Issuer has funds legally available therefor; and
(iv) upon a voluntary or involuntary dissolution, winding up or
termination of the Issuer (other than in connection with the distribution
of Debentures to the Holders in exchange for Securities as provided in the
Trust Agreement), the lesser of:
(a) the aggregate Accreted Value of the Securities plus all
accumulated and unpaid Distributions on the Securities to the date of
payment, to the extent the Issuer has funds legally available therefor;
and
(b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer.
"GUARANTEE TRUSTEE" means The Bank of New York, a New York banking
corporation, until a Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Guarantee and thereafter
means each such Successor Guarantee Trustee.
"GUARANTOR" has the meaning set forth in the Recitals hereto.
"HOLDER" has the meaning given such term in the Trust Agreement.
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"INDEMNIFIED PERSON" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives, nominees, custodians or agents of the Guarantee
Trustee.
"INDENTURE" means the Junior Subordinated Indenture, dated as of
December 18, 2001, between the Debenture Issuer, and the Debenture Trustee, as
trustee, as amended or supplemented from time to time, including the First
Supplemental Indenture, dated as of December 18, 2001, between the Debenture
Issuer and the Debenture Trustee, pursuant to which the Debentures are to be
issued.
"ISSUER" has the meaning set forth in the Recitals hereto.
"LIQUIDATION DISTRIBUTION" has the meaning set forth in the Trust
Agreement.
"LIST OF HOLDERS" has the meaning set forth in Section 2.2.
"MAJORITY IN LIQUIDATION AMOUNT" means, except as provided by the Trust
Indenture Act, a vote by Holders of outstanding Preferred Securities or the
Holders of outstanding Common Securities, voting separately as a class, who are
the record owners of more than 50% of the aggregate stated liquidation amount
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities or all
outstanding Securities of the relevant class, as the case may be.
"OFFICERS' CERTIFICATE" means, with respect to any person, a
certificate signed by the Chairman, a Vice Chairman, the Chief Executive
Officer, the President, a Vice President, the Chief Accounting Officer, the
Controller or an Assistant Controller and the Secretary or an Assistant
Secretary of the Company. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee (other
than pursuant to Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"OTHER DEBENTURES" means all junior subordinated debentures issued by
the Guarantor from time to time and sold to any other trust, partnership or
other entity affiliated with the Guarantor that is a financing vehicle of the
Guarantor, if any, in each case similar to the Issuer.
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"OTHER GUARANTEES" means all guarantees to be issued by the Guarantor
with respect to capital securities, if any, similar to the Securities, issued by
any other trust, partnership or other entity affiliated with the Guarantor that
is a financing vehicle of the Guarantor, if any, in each case similar to the
Issuer.
"PERSON" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"PREFERRED SECURITIES" has the meaning set forth in the Recitals
hereto.
"PROPERTY TRUSTEE" has the meaning set forth in the Trust Agreement.
"PRO RATA" has the meaning set forth in the Trust Agreement.
"REDEMPTION PRICE" has the meaning set forth in the Trust Agreement.
"RESPONSIBLE OFFICER" means any officer within the Corporate Trust
Office of the Guarantee Trustee, including any vice president, any assistant
vice president, any assistant secretary, the treasurer, any assistant treasurer
or other officer of the Corporate Trust Office of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"SECURITIES" has the meaning set forth in the Recitals hereto.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"TRUST AGREEMENT" has the meaning set forth in the Recitals hereto.
"TRUST ENFORCEMENT EVENT" has the meaning given such term in the Trust
Agreement.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, or any
successor legislation, in each case, as amended.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement, dated as of
December 12, 2001, among the Company, the Trust and ▇▇▇▇▇▇ Brothers Inc. and
Banc of America Securities LLC, as underwriters.
"UNIT" has the meaning set forth in the Trust Agreement.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1. Trust Indenture Act, Application
(a) This Guarantee is subject to the provisions of the Trust Indenture
Act that are required to be part of this Guarantee and shall be governed, to the
extent applicable, by such provisions; and
(b) if and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Section 310 to 317, inclusive,
of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2. Lists of Holders of Securities
(a) The Guarantor shall provide the Guarantee Trustee (unless the
Guarantee Trustee is otherwise the registrar of the Securities) with a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders ("LIST OF HOLDERS"):
(i) as of the record date relating to the payment of any Guarantee
Payment, at least one Business Day prior to the date for payment of
such Guarantee Payment, except while the Preferred Securities are
represented by one or more Global Preferred Securities; and
(ii) at any other time, within 30 days of receipt by the Guarantor
of a written request from the Guarantee Trustee for a List of Holders
as of a date no more than fifteen days before such List of Holders is
given to the Guarantee Trustee.
If at any time the List of Holders does not differ from the most recent List of
Holders provided to the Guarantee Trustee by the Guarantor, the Guarantor shall
not be obligated to provide such List of Holders. The Guarantee Trustee shall
preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it, provided that the Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and Section 312(b)
of the Trust Indenture Act.
SECTION 2.3. Reports by the Guarantee Trustee
By March 31 of each year (commencing with the first anniversary of the
issuance of the Preferred Securities), the Guarantee Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section
313 of the Trust Indenture Act, if any, in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the other requirements of Section 313 of the Trust Indenture Act.
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SECTION 2.4. Periodic Reports to the Guarantee Trustee
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information as required by Section 314, if any, and the compliance
certificate required by Section 314 of the Trust Indenture Act in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5. Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6. Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of the Preferred
Securities and the Common Securities, each voting as a separate class, may, by
vote, on behalf of all Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7. Event of Default; Notice
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, mail by first class postage prepaid, to all Holders,
notices of all Events of Default actually known to a Responsible Officer, unless
such defaults have been cured before the giving of such notice, provided, that,
except in the case of default in the payment of any Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee, or a trust committee of
directors and/or a Responsible Officer in good faith determines that the
withholding of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written notice
from the Guarantor, or a Responsible Officer charged with the administration of
the Trust Agreement shall have obtained actual knowledge, of such Event of
Default.
SECTION 2.8. Conflicting Interests
The Trust Agreement and the Indenture shall be deemed to be
specifically described in this Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
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SECTION 2.9. Disclosure of Information
The disclosure of information as to the names and addresses of the
Holders of the Securities in accordance with Section 312 of the Trust Indenture
Act, regardless of the source from which such information was derived, shall not
be deemed to be a violation of any existing law, or any law hereafter enacted
which does not specifically refer to Section 312 of the Trust Indenture Act, nor
shall the Guarantee Trustee be held accountable by reason of mailing any
material pursuant to a request made under Section 312(b) of the Trust Indenture
Act.
SECTION 2.10. Guarantee Trustee May File Proofs of Claim
Upon the occurrence of an Event of Default, the Guarantee Trustee is
hereby authorized, but shall not be obligated, to:
(a) recover judgment, in its own name and as trustee of an express
trust, against the Guarantor for the whole amount of any Guarantee Payments
remaining unpaid; and
(b) file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have its claims and those of the Holders
allowed in any judicial proceedings relative to the Guarantor, its creditors or
its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.1. Powers and Duties of the Guarantee Trustee
(a) This Guarantee shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee pursuant to Section 4.2. The right, title and interest of the Guarantee
Trustee shall automatically vest in any Successor Guarantee Trustee, and such
vesting and succession of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Guarantee Trustee.
(b) If an Event of Default actually known to a Responsible Officer has
occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee
for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the cure or waiver of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer, the Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Guarantee, and use the same
degree of care and skill in its exercise thereof, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
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(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the
curing or waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee,
and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Guarantee, and no implied covenants or obligations
shall be read into this Guarantee against the Guarantee Trustee;
and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee; but in the case of any such certificates or opinions
that by any provision hereof are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall be
under a duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
Liquidation Amount of the Securities relating to the time, method and
place of conducting any proceeding, for any remedy available to the
Guarantee Trustee in respect of this Guarantee, or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Guarantee or indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured to
it.
SECTION 3.2. Certain Rights of Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
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(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this
Guarantee shall be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee shall have no duty to record, file or
register any instrument (or any duty to rerecord, refile or reregister
such instrument).
(v) The Guarantee Trustee may consult with counsel of its
selection or other experts of its selection, and the written advice or
opinion of such counsel with respect to legal matters shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be counsel to the
Guarantor or any of its Affiliates and may include any of its
employees. The Guarantee Trustee shall have the right at any time to
seek instructions concerning the administration of this Guarantee from
any court of competent jurisdiction.
(vi) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by
the Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Guarantee.
(vii) The Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
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(viii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, nominees, custodians or attorneys, and the Guarantee
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed with due care by it
hereunder.
(ix) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to inquire as
to the authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee, both
of which shall be conclusively evidenced by the Guarantee Trustee's or
its agent's taking such action.
(x) Whenever in the administration of this Guarantee the Guarantee
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee:
(A) may request instructions from the Holders of a Majority
in Liquidation Amount of the Preferred Securities;
(B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received; and
(C) shall be protected in conclusively relying on or acting
in accordance with such instructions.
(xi) The Guarantee Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith, without
negligence, and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Guarantee.
(b) No provision of this Guarantee shall be deemed to impose any duty
or obligation on the Guarantee Trustee to perform any act or acts or exercise
any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee
The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representation as to the validity or sufficiency of this Guarantee.
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ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1. Guarantee Trustee: Eligibility
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws
of the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustee
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor except during an Event of
Default. Subject to the provisions of this Section 4.2, if an Event of Default
shall have occurred and be continuing, the Guarantee Trustee may be appointed or
removed by the Holders of a Majority in Liquidation Amount.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee shall hold office until a Successor Guarantee
Trustee shall have been appointed or until its removal or resignation. The
Guarantee Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing executed by the Guarantee Trustee and
delivered to the Guarantor, which resignation shall not
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take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery of an instrument of removal or resignation, the Guarantee Trustee
resigning or being removed may at the expense of the Guarantor petition any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as it
may deem proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to
act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts owing for fees and reimbursement of expenses
accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1. Guarantee
To the extent set forth in this Guarantee, the Guarantor irrevocably
and unconditionally agrees to pay in full to all Holders the Guarantee Payments
(without duplication of amounts theretofore paid by the Issuer) on a Pro Rata
basis, as and when due, regardless of any defense, right of set-off or
counterclaim that the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. If a Trust Enforcement Event has occurred and is
continuing, the rights of the Holders of the Common Securities to receive
Guarantee Payments shall be subordinated to the rights of the Holders of
Preferred Securities to receive Guarantee Payments. Notwithstanding anything to
the contrary herein, the Company, in its capacity as Debenture Issuer, retains
all of its rights under the Indenture to:
(i) extend the interest payment period on the Debentures and the
Guarantor shall not be obligated hereunder to make any Guarantee
Payments during any Extension Period (as defined in the Indenture) with
respect to the Distributions on the Securities; and
(ii) change the maturity date of the Debentures to the extent
permitted by the Indenture.
SECTION 5.2. Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this Guarantee and
of any liability to which it applies or may apply, presentment, demand for
payment, any right to require
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a proceeding first against the Issuer or any other Person before proceeding
against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice
of redemption and all other notices and demands.
SECTION 5.3. Obligations Not Affected
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or a
portion of the Distributions, Redemption Price, Liquidation Distributions or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Securities (other than an extension of time for payment of
Distributions, Redemption Price, Liquidation Distributions or other sum payable
that results from the extension of any interest payment on the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Securities, or any action
on the part of the Issuer, granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer, or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Securities;
(f) the settlement or compromise of any obligation guaranteed or
incurred in this Guarantee; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor with respect to the
Guarantee Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain consent of, the Guarantor or any other Person with respect to the
happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind or nature that the Guarantor has or may have against any
Holder (except the defense
15
of payment to such Holder) shall be available hereunder to the Guarantor
against such Holder to reduce the payments to it under this Guarantee.
SECTION 5.4. Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of the Preferred
Securities and the Common Securities, each voting as a class separately, have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of this Guarantee or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, subject
to the subordination provisions of Section 6.2, any Holder may institute a legal
proceeding directly against the Guarantor to enforce the Guarantee Trustee's
rights under this Guarantee, without first instituting a legal proceeding
against the Issuer, the Guarantee Trustee or any other person or entity. In
addition, if the Guarantor has failed to make a Guarantee Payment, a Holder,
subject to the subordination provisions of Section 6.2, may institute a legal
proceeding directly against the Guarantor for enforcement of the Guarantee for
payment to such Holder of any amounts due as Guarantee Payments having a
principal amount equal to the aggregate liquidation amount of the Securities of
such Holder. The Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other Person before proceeding
directly against the Guarantor.
SECTION 5.5. Guarantee of Payment
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.6. Subrogation
The Guarantor shall be subrogated to all, if any, rights of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee; provided, however, that the Guarantor shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any right that it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee, if, at the time of any such payment, any amounts are due
and unpaid under this Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Guarantee Trustee for
the benefit of the Holders.
SECTION 5.7. Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections (a) through (g), inclusive,
of Section 5.3 hereof.
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ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1. Limitation of Transactions
So long as any Securities remain outstanding, if an Event of Default
occurs under this Guarantee or a Trust Enforcement Event occurs under the Trust
Agreement and written notice of such event has been given to the Guarantor, the
Guarantor shall not:
(a) declare or pay any dividends on, make distributions regarding, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
its capital stock, other than:
(i) purchases of capital stock of the Guarantor in connection with
or the satisfaction by the Guarantor of its obligations any employee or
agent benefit plans or the satisfaction by the Guarantor of its
obligations under any contract or security outstanding on such date
requiring the Guarantor to purchase the capital stock of the Guarantor
or under any dividend reinvestment plans;
(ii) in connection with the reclassification of any class or
series of capital stock of the Guarantor or the exchange or the
conversion of one class or series of the capital stock of the Guarantor
for or into another class or series of the capital stock of the
Guarantor;
(iii) the purchase of fractional interests in shares of the
capital stock of the Guarantor in connection with the conversion or
exchange provisions of such capital stock or the security being
converted or exchanged;
(iv) dividends or distributions in capital stock (or rights to
acquire capital stock) or repurchases or redemptions of capital stock
solely from the issuance or exchange of capital stock of the Guarantor;
(v) any declaration of a dividend in connection with the
implementation of a shareholder rights plan, or the issuances of stock
under any such plan in the future, or redemptions or repurchases of any
rights pursuant to a shareholder rights agreement; and
(vi) repurchases of capital stock of the Guarantor in connection
with any acquisitions of businesses made by the Guarantor (which
repurchases are made in connection with the satisfaction of
indemnification obligations of the sellers of such businesses);
(b) make any payment of principal of, or interest or premium, if any,
on, or repay, repurchase or redeem any debt securities issued by the Guarantor
that rank pari passu with or junior in interest to the Debentures; or
(c) make any guarantee payments with respect to any guarantee by the
Guarantor of the debt securities of any subsidiary of the Guarantor, if such
guarantee ranks pari passu with or junior in interest to this Guarantee other
than any payments under this Guarantee.
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SECTION 6.2. Ranking
This Guarantee will constitute an unsecured obligation of the Guarantor
and will rank:
(i) subordinated and junior in right of payment to Senior
Indebtedness (as defined in the First Supplemental Indenture), to the
same extent and in the same manner that the Debentures are subordinated
to Senior Indebtedness pursuant to the Indenture;
(ii) pari passu with the most senior preferred or preference stock
now or hereafter issued by the Guarantor, any guarantee now or
hereafter entered into by the Guarantor in respect of any preferred or
preference stock of any Affiliate of the Guarantor, and any Other
Guarantee; and
(iii) senior to the Guarantor's capital stock.
ARTICLE VII
TERMINATION
SECTION 7.1. Termination
This Guarantee shall terminate upon:
(i) full payment of the stated liquidation value or Redemption
Price of all Securities to the Holders thereof;
(ii) distribution of the Debentures held by the Issuer to the
Holders;
(iii) liquidation of the Issuer, the full payment of the amounts
payable in accordance with the Trust Agreement or the distribution of
the Debentures to the Holders; or
(iv) the payment of the Exercise Price (as defined in the Warrant
Agreement) of Warrants by Remarketed Securities as provided in the
Trust Agreement and the Warrant Agreement.
Notwithstanding the foregoing, this Guarantee will continue to be effective or
will be reinstated, as the case may be, if at any time any Holder must restore
payment of any sums paid under the Securities or under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1. Exculpation
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Guarantor or any Covered Person for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in
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good faith in accordance with this Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Guarantee or by law, except that an
Indemnified Person shall be liable for any such loss, damage or claim incurred
by reason of such Indemnified Person's negligence or willful misconduct with
respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Guarantor and upon such information, opinions,
reports or statements presented to the Guarantor by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Guarantor, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which Distributions to Holders might properly be paid.
SECTION 8.2. Indemnification
To the fullest extent permitted by law, the Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses (including reasonable legal fees and expenses)
of defending itself against, or investigating, any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligation to indemnify as set forth in this Section 8.2 shall
survive the termination of this Guarantee and shall survive the removal or
resignation of the Guarantee Trustee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Successors and Assigns
All guarantees and agreements contained in this Guarantee shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders then outstanding.
SECTION 9.2. Amendments
Except with respect to any changes that do not materially adversely
affect the rights of Holders (in which case no consent of Holders will be
required), this Guarantee may only be amended with the prior approval of the
Holders of a Majority in Liquidation Amount of the Securities (including the
stated liquidation amount that would be paid on redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined). The provisions of the Trust Agreement with
respect to consents to amendments thereof, whether at a meeting or otherwise,
shall apply to the giving of such approval.
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SECTION 9.3. Notices
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered by hand or
express courier, telecopied or mailed by first class mail, as follows:
(a) If given to the Issuer, at the Issuer's mailing address set forth
below (or such other address as the Issuer may give notice of to the Holders and
the Guarantee Trustee):
RGA Capital Trust I
c/o Reinsurance Group of America, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Holders and the Issuer):
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders and the Guarantee Trustee):
Reinsurance Group of America, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) If given to any Holder, at such Holder's address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
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SECTION 9.4. Benefit
This Guarantee is solely for the benefit of the Holders and, subject to
Section 3.1(a), is not separately transferable from the Securities.
SECTION 9.5. Governing Law
This Guarantee shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
SECTION 9.6. Counterparts
This Guarantee may contain more than one counterpart of the signature
page, and this Guarantee may be executed by affixing of the signature of each of
the parties to one of such counterpart signature pages. All such counterpart
signature pages shall be read as though one, and they shall have the same force
and effect as though all of the signers had signed a single signature page.
IN WITNESS WHEREOF, this Guarantee Agreement has been entered into as
of the day and year first above written.
REINSURANCE GROUP OF AMERICA,
INCORPORATED, as Guarantor
By:
---------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:
---------------------------------------
Name:
Title: