Exhibit h (viii)
AMENDED AND RESTATED
NET WORTH MAINTENANCE AGREEMENT
This agreement ("Agreement"), made and entered into as of November 15, 2005,
amends and restates in its entirety that certain Net Worth Maintenance Agreement
dated as of January 6, 2000 (the "Effective Date"), as amended, by and between
Metropolitan Life Insurance Company ("MetLife"), a life insurance company
domiciled in the State of New York, and General American Life Insurance Company
("General American"), a stock life insurance company domiciled in the State of
Missouri.
WHEREAS, MetLife indirectly owns 100% of the outstanding common stock of General
American;
WHEREAS, MetLife intends to indirectly own 100% of the outstanding common stock
of General American;
WHEREAS, although General American is a company with operations that are
distinct and separate from those of MetLife, its operations are integral to
MetLife's strategic direction;
WHEREAS, MetLife and General American recognize the importance in a competitive
insurance industry of obtaining the highest possible ratings for financial
strength; and
WHEREAS, MetLife and General American desire to take certain actions to enhance
and maintain the financial strength of General American as herein set forth;
NOW THEREFORE, in consideration of the mutual promises herein contained, the
parties hereto agree as follows:
1. CAPITAL AND SURPLUS. MetLife agrees that it shall cause General American to
have at all times during the term of this Agreement the greater of:
(a) A minimum capital and surplus of $10 million; or
(b) the amount of capital and surplus as shall be necessary to maintain
a total adjusted capital of General American at a level not less
than 250% of the company action level RBC (or 500% of the authorized
control level RBC) of General American.
For purposes of this Paragraph 1(b), "total adjusted capital", "company action
level RBC" and "authorized control level RBC" shall be as defined in the
Risk-Based Capital (RBC) for Insurers Model Act adopted by the National
Association of Insurance Commissioners.
2. LIQUIDITY. During the term of this Agreement, MetLife shall cause General
American to have the liquidity necessary to enable it to meet its current
obligations on a timely basis; provided, however, that such liquidity shall be
provided in accordance with, and only to the extent permitted by, applicable
law.
3. WAIVERS. MetLife hereby waives any failure or delay on the part of General
American (but not of any other person or entity) in asserting or enforcing any
of its rights or in making any claims or demands hereunder.
4. TERM AND TERMINATION. Unless earlier terminated in accordance with this
Paragraph, this Agreement shall continue indefinitely. MetLife shall have the
absolute right to terminate this Agreement upon thirty (30) days' written notice
to General American; provided, however, that MetLife agrees not to terminate
this Agreement unless General American attains a rating from each of Standard &
Poor's Corp ("S&P"), ▇▇▇▇▇'▇ Investors Service ("Moody's"), A.M. Best Company
("A.M. Best") and Duff & ▇▇▇▇▇▇ Credit Rating Co. ("Duff & ▇▇▇▇▇▇"), without
giving weight to the support of this Agreement, that is the same as or better
than its rating from such agency with such support, or MetLife sells General
American to an acquirer (i) having a rating from each of S&P, Moody's, A.M. Best
and Duff & ▇▇▇▇▇▇ that is at least equal to the lower of (a) MetLife's then
current rating from such agency or (b) General American's then current rating as
supported by this Agreement from such agency; or (ii) such that, after giving
effect to the sale, General American attains a rating from each of S&P, Moody's,
A.M. Best and Duff & ▇▇▇▇▇▇ that is the same as or better than its then current
rating from such agency as supported by this Agreement.
5. RIGHT TO ENFORCE. Any creditor of General American (including, but not
limited to, its employees, policyholders and trade creditors) shall have the
right to enforce the provisions of this Agreement through the Director of the
Department of Insurance of the State of Missouri or the state insurance
regulator of such creditor's state of residence if General American defaults on
any claim or other payment owed to such creditor when due, and such insurance
regulator may, at the request of such creditor, made in accordance with and
subject to the conditions of this Agreement, proceed directly against MetLife to
enforce the provisions of this Agreement; provided, however, that no creditor of
General American may take any action authorized under this Paragraph unless and
until (a) such creditor has given MetLife written notice of its intent to
enforce the terms of this Agreement as provided in this Paragraph, which notice
shall specify in reasonable detail the nature of and basis for the creditor's
complaint and (b) MetLife has failed to comply with this Agreement within sixty
(60) days after such notice is given.
6. FEE. (a) General American shall pay MetLife a fee for the undertakings of
MetLife under this Agreement. The initial fee shall be Fifty Thousand Dollars
($50,000) and shall cover the period from the Effective Date through December
31, 2000. For each calendar year thereafter (or portion thereof) during which
this Agreement remains in effect, the fee shall be paid annually and shall be
equal to the product of (i) .25(1/4) of a basis point multiplied by (ii) the
mean of General American's general account policy reserves net of policy loans
for the calendar year immediately preceding the year for which the fee is due
and payable, except as modified in accordance with subparagraph (b) of this
Paragraph. The initial fee is due and payable within 15 days after this
Agreement is executed by the parties hereto. The annual fee for each calendar
year starting with calendar year 2001 shall be due and payable not later than
March 1 of such calendar year, provided, however, that in the event this
Agreement is terminated by MetLife in any calendar year after MetLife has
received the fee for such calendar year, MetLife shall refund the portion of the
annual fee which is allocable (based on the number of days in such calendar
year) to the portion of such calendar year following such termination.
(b) At the request of either party hereto not later than January 15 of any
calendar year starting with the calendar year 2001, the formula for calculating
the fee shall be reviewed by the parties hereto in light of the past and
anticipated year-to-year changes in General American's general account policy
reserves net of policy loans, the financial risks inherent in the operations of
General American, and such other factors as the parties deem relevant, and shall
be subject to change not later than February 15 of such calendar year by mutual
consent of the parties hereto.
7. NOT A GUARANTEE. This Agreement is not, and nothing herein contained and
nothing done pursuant hereto by MetLife shall constitute or be construed or
deemed to constitute, an evidence of indebtedness or an obligation or liability
of MetLife as guarantor, endorser, surety or otherwise in respect of any
obligation, indebtedness or liability, of any kind whatsoever, of General
American and this Agreement does not provide, and is not intended to be
construed or deemed to provide, any creditor of General American with recourse
to or against any of the assets of MetLife.
8. APPLICABLE LAW AND FORUM. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving effect to
the principles of conflicts of laws.
9. ASSIGNMENT. This Agreement shall be binding upon and enforceable against
successors and permitted assigns. No party hereto shall assign this Agreement or
any rights or obligations hereunder, and no other person or entity entitled to
take any action under this Agreement shall assign the right to take such action,
without the prior written consent of the parties hereto (other than the party
proposing to make such assignment), and any such attempted assignment without
prior written consent shall be void and of no force or effect.
10. COMMUNICATIONS. All notices, requests, demands and other communications
under this Agreement (whether from MetLife, General American, or any other
person or entity) shall be in writing and shall be deemed to have been duly
given; (a) on the date of service if served personally on the party to which
such notice is to be given; (b) on the date of transmission if sent via
facsimile transmission to the facsimile number given below, and telephonic
confirmation of transmission is obtained promptly after completion of
transmission; (c) on the day after delivery to Federal Express or similar
overnight carrier or the Express Mail Service maintained by the United States
Postal Service; or (d) on the fifth calendar day after mailing, if mailed to the
party to which such notice is to be given,
by first class mail, registered or certified, postage prepaid and properly
addressed, to the party as follows:
If to MetLife to:
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Copy to: Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
If to General American:
General American Life Insurance Company
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Any party hereto may change its address or facsimile number for the purpose of
this Paragraph by giving the other party notice of its new address in the manner
set forth above.
11. PUBLICITY. No party hereto may, directly or indirectly, disclose this
Agreement or the terms hereof, other than to any regulatory agency or rating
agency, except with the permission of the other party hereto and then only as
permitted by law.
12. SEVERABILITY. If any provision of this Agreement shall be declared null,
void or unenforceable in whole or in part by any court, arbitrator or
governmental agency, said provision shall survive to the extent it is not so
declared and all the other provisions of this Agreement shall remain in full
force and effect unless, in each case, such declaration shall serve to deprive
any of the parties hereto of the fundamental benefits of or rights under this
Agreement.
13. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussion, whether oral or written, of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year above
written.
Metropolitan Life Insurance Company General American Life Insurance
Company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Title: Senior Vice President and
Treasurer Treasurer
