Exhibit 4.22
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FORM OF
PREFERRED SECURITIES
GUARANTEE AGREEMENT
BETWEEN
PARTNERRE LTD.
(AS GUARANTOR)
AND
JPMORGAN CHASE BANK
(AS GUARANTEE TRUSTEE)
DATED AS OF
_______ __, 200_
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions......................................................1
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application................................4
SECTION 2.2 List of Holders..................................................5
SECTION 2.3 Reports by the Guarantee Trustee.................................5
SECTION 2.4 Periodic Reports to the Guarantee Trustee........................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent.................5
SECTION 2.6 Events of Default; Waiver........................................5
SECTION 2.7 Event of Default; Notice.........................................6
SECTION 2.8 Conflicting Interests............................................6
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.......................6
SECTION 3.2 Certain Rights of the Guarantee Trustee..........................7
SECTION 3.3 Indemnity........................................................9
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility...................................9
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees......10
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.......................................................11
SECTION 5.2 Waiver of Notice and Demand.....................................11
SECTION 5.3 Obligations Not Affected........................................11
SECTION 5.4 Rights of Holders...............................................12
SECTION 5.5 Guarantee of Payment............................................12
SECTION 5.6 Subrogation.....................................................12
(i)
SECTION 5.7 Independent Obligations.........................................12
SECTION 5.8 Net Payments....................................................13
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions......................................14
SECTION 6.2 Ranking.........................................................15
SECTION 6.3 Pari Passu Guarantees...........................................15
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.....................................................15
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns..........................................16
SECTION 8.2 Amendments......................................................16
SECTION 8.3 Notices.........................................................16
SECTION 8.4 Benefit.........................................................17
SECTION 8.5 Holders of Preferred Securities as Third Party Beneficiaries....17
SECTION 8.6 Governing Law...................................................17
SECTION 8.7 Interpretation..................................................18
SECTION 8.8 Submission to Jurisdiction......................................18
SECTION 8.9 Judgment Currency...............................................19
(ii)
GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT, dated as of _______ __,
200_, is executed and delivered by PartnerRe Ltd., a Bermuda company
("PartnerRe" or the "Guarantor"), having its principal executive offices at 00
Xxxxx Xxx Xxxx, Xxxxxxxx HM 08, Bermuda, and JPMorgan Chase Bank, a New York
banking corporation, having a corporate trust office located at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Preferred
Securities (as defined herein) of PartnerRe Capital Trust III, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as
of _______ __, 200_, among the Trustees named therein, JPMorgan Chase Bank, as
Property Trustee, Chase Manhattan Bank USA, National Association, a national
banking association, as Delaware Trustee, and ParnterRe Finance II Inc., a
Delaware corporation, as depositor (in such capacity, the "Depositor"), and the
Holders from time to time of undivided beneficial ownership interests in the
assets of the Issuer (the "Trust Agreement"), the Issuer is issuing $___________
aggregate liquidation preference of its ___% Preferred Securities (liquidation
preference $__ per preferred security) (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of the Issuer and having
the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined herein), will be used to purchase the Junior
Subordinated Debt Securities (as defined herein) of PartnerRe Finance II Inc.
(in its capacity as issuer of the Junior Subordinated Debt Securities, the
"Debenture Issuer"), which will be deposited with JPMorgan Chase Bank, as
Property Trustee under the Trust Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Guarantee, to pay to the Holders of the Preferred
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for
the benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions
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As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used, but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"Additional Amounts" means any additional amounts which are required
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hereby or by the terms of the Preferred Securities, under circumstances
specified herein or in the Trust Agreement to be paid by the Guarantor in
respect of certain taxes, assessments or other governmental charges imposed on
Holders specified herein or therein and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authorized Officer" means, when used with respect to any Person, the
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Chairman of the Board of Directors, a Vice Chairman, the President, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Chief Investment Officer, the Chief Accounting Officer, the General Counsel,
the Secretary or an Assistant Secretary, of such Person.
"Capitalized Lease Obligations" means an obligation under a lease that
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is required to be capitalized for financial reporting purposes in accordance
with generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles.
"Common Securities" means the securities representing common undivided
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beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
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payment or other obligations under this Guarantee Agreement; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
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without duplication, with respect to the Preferred Securities, to the extent not
paid or made by or on behalf of the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Trust Agreement) that are required to be paid
on such Preferred Securities, to the extent the Issuer shall have funds on hand
available therefor at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price") with respect to Preferred Securities called for redemption by the
Issuer, to the extent the Issuer shall have funds on hand available therefor at
such time and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Issuer, other than in connection with the distribution of the
Junior Subordinated Debt Securities to the Holders, the lesser of (a) the
aggregate of the liquidation preference of $__ per Preferred Security plus
accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds on hand available to make
such payment and (b) the amount of assets of the Issuer remaining available for
distribution to Holders of the Preferred Securities upon liquidation of the
Issuer (in either case, the "Liquidation Distribution").
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"Guarantee Trustee" means JPMorgan Chase Bank, until a Successor
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Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" shall mean any holder, as registered on the books and records
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of the Issuer, of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Depositor, the Guarantee Trustee or any
Affiliate of the Guarantor, the Depositor, or the Guarantee Trustee.
"Indebtedness" means, with respect to any Person, (i) the principal of
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and any premium and interest on (a) indebtedness of such Person for money
borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured; and
(vii) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" means the Junior Subordinated Indenture dated as of _______
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__, 200_ among the Debenture Issuer, the Guarantor and JPMorgan Chase Bank, as
trustee, and any indenture supplemental thereto pursuant to which the Junior
Subordinated Debt Securities are to be issued to the Property Trustee of the
Issuer.
"Junior Subordinated Debt Securities" means the $___________ aggregate
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principal amount of unsecured junior subordinated debt securities issued by the
Debenture Issuer pursuant to the Indenture.
"List of Holders" has the meaning specified in Section 2.2(a).
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"Majority in liquidation preference of the Preferred Securities" means,
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except as provided by the Trust Indenture Act, a vote by Holder(s), voting
separately as a class, of more than 50% of the liquidation preference of all
then outstanding Preferred Securities issued by the Issuer.
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"Officers' Certificate" means, with respect to any Person, a
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certificate signed by two Authorized Officers, at least one of which is a
principal executive, principal financial or principal accounting officer, and is
delivered to the Guarantee Trustee. Any Officers' Certificate delivered with
respect to compliance with a condition or covenant provided for in this
Guarantee 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 such officer in rendering the Officers' Certificate;
(c) a statement that 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 such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
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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.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
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officer of the Guarantee Trustee with direct responsibility for administration
of this Guarantee Agreement 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.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
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possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
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amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
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(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
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SECTION 2.2 List of Holders
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(a) Within 30 days after the receipt by the Guarantor of a request in
writing from the Guarantee Trustee, the Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the Holders ("List of
Holders"), such List of Holders to be as of a date not more than 15 days prior
to the time such List of Holders is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. 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
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
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Within 60 days after _______ 15 of each year commencing with _______
15, 200_, the Guarantee Trustee shall provide to the Holders 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 requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Guarantee Trustee
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The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders, such documents, reports and
information, if any, as required by Section 314 of the Trust Indenture Act 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
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The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement 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
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The Holders of a Majority in liquidation preference of the Preferred
Securities 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 Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
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SECTION 2.7 Event of Default; Notice
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(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notices of all such Events of Default,
unless such defaults have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment of a Guarantee Payment,
the Guarantee Trustee shall be protected in withholding such notice if and so
long as a the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Guarantee Trustee 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, or a Responsible Officer of the Guarantee Trustee charged with the
administration of the Trust Agreement shall have actual knowledge or shall have
obtained written notice, of such Event of Default.
SECTION 2.8 Conflicting Interests
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The Trust Agreement shall be deemed to be specifically described in
this Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
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(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation 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 has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing 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 Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement,
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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.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of 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 Agreement, 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
Agreement, 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 Agreement; 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 Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, 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 not less than a
Majority in liquidation preference of the Preferred Securities relating
to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; 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 Agreement or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
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(a) Subject to the provisions of Section 3.1:
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(i) The Guarantee Trustee may rely upon, 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 Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, 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 rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal
counsel, 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 to be
taken 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 Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement 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 reasonable attorneys' fees and expenses) 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)(v) 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 Agreement.
(vi) 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.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees, and the Guarantee
Trustee shall not be responsible for any
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misconduct or negligence on the part of any such agent, attorney,
custodian or nominee appointed with due care by it hereunder.
(viii) 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
Agreement, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
(ix) Whenever in the administration of this Guarantee
Agreement 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 preference
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 acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement 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 to act in accordance with such power and
authority.
SECTION 3.3 Indemnity
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The Guarantor agrees to indemnify the Guarantee Trustee and its
officers, directors, employees and agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Guarantee Trustee, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder and including the reasonable fees and expenses of its counsel.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Agreement as a result of any amount due to it under this Guarantee
Agreement.
The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
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(a) There shall at all times be a Guarantee Trustee which shall:
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(i) not be an Affiliate of the Guarantor or the Depositor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital of at least 50
million U.S. dollars ($50,000,000), and shall be a corporation meeting
the requirements of Section 310(c) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, 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 Trustees
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(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(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 appointed to office 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
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 to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may 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.
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ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert, except the
defense of payment. 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.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, 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 be as if it were a principal obligor and not merely a
surety, and 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 Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Preferred Securities or the extension
of time for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Junior Subordinated Debt Securities or so provided 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 Preferred 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;
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(e) any invalidity of, or defect or deficiency in, the Preferred
Securities; or
(f) 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 hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
-----------------
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
liquidation preference of the Preferred Securities 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 Agreement or to direct the
exercise of any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and (iv) any Holder may, to the extent permitted by law,
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives any right or remedy to require that any action on this
Guarantee Agreement be brought first against the Issuer or any other Person or
entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Guarantee creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts theretofore paid by
the Issuer) or upon distribution of Junior Subordinated Debt Securities to
Holders as provided in the Trust Agreement.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee Agreement; 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 Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Guarantee Agreement. 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 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 Preferred
Securities, and that the Guarantor shall be
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liable as principal and as debtor hereunder to make Guarantee Payments pursuant
to the terms of this Guarantee Agreement notwithstanding the occurrence of any
event referred to in subsections (a) through (f), inclusive, of Section 5.3
hereof.
SECTION 5.8 Net Payments
------------
All Guarantee Payments required to be made hereunder shall be made by
the Guarantor without withholding or deduction at source for, or on account of,
any present or future taxes, fees, duties, assessments or governmental charges
of whatever nature imposed or levied by or on behalf of the Islands of Bermuda
or such other jurisdiction in which the Guarantor (or any of its successors
under the Guarantee Agreement) may be organized (each, a "taxing jurisdiction")
or any political subdivision or taxing authority thereof or therein, unless such
taxes, fees, duties, assessments or governmental charges are required to be
withheld or deducted by (i) the laws (or any regulations or ruling promulgated
thereunder) of a taxing jurisdiction or any political subdivision or taxing
authority thereof or therein or (ii) an official position regarding the
application, administration, interpretation or enforcement of any such laws,
regulations or rulings (including, without limitation, a holding by a court of
competent jurisdiction or by a taxing authority in a taxing jurisdiction or any
political subdivision thereof). If a withholding or deduction at source is
required, the Guarantor shall, subject to certain limitations and exceptions set
forth below, pay to the Holder of any Preferred Security such Additional Amounts
as may be necessary so that every Guarantee Payment made to such Holder, after
such withholding or deduction, shall not be less than the amount provided for in
this Guarantee Agreement to be then due and payable; provided, however, that the
Guarantor shall not be required to make payment of such Additional Amounts for
or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that such Holder: (A)
was a resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the relevant taxing
jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the
mere ownership of, or receipt of payment under, such Preferred Security; (B)
presented such Preferred Security for payment in the relevant taxing
jurisdiction or any political subdivision thereof, unless such Preferred
Security could not have been presented for payment elsewhere; or (C) presented
such Preferred Security more than thirty (30) days after the date on which the
payment in respect of such Preferred Security first became due and payable or
provided for, whichever is later, except to the extent that the Holder would
have been entitled to such Additional Amounts if it had presented such Preferred
Security for payment on any day within such period of thirty (30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of such
Preferred Security to comply with any reasonable request by the Guarantor or the
Trust addressed to the Holder within 90 days of such request (A) to provide
information concerning the nationality, residence or identity of the Holder or
such beneficial owner or (B) to make any declaration or other similar claim or
satisfy any information or reporting requirement, which, in the case of (A) or
(B), is required or
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imposed by statute, treaty, regulation or administrative practice of the
relevant taxing jurisdiction or any political subdivision thereof as a
precondition to exemption from all or part of such tax, assessment or other
governmental charge; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of the related Preferred Security, but only to the extent such payment
would be required by the laws of the relevant taxing jurisdiction (or any
political subdivision or relevant taxing authority thereof or therein) to be
included in the income for tax purposes of a beneficiary or partner or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner who would not have been entitled to such Additional Amounts had it been
the Holder of such Preferred Security.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
--------------------------
The Guarantor hereby covenants and agrees that, so long as any
Preferred Securities remain outstanding, it will not, and will not permit any of
its Subsidiaries to, (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the outstanding capital shares of the Guarantor or (b) make any payment of
principal of, interest or premium, if any, on or repay, repurchase or redeem any
debt security of the Guarantor that ranks junior in interest to the Junior
Subordinated Debt Securities or the guarantee in respect thereof, as the case
may be, or 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 junior in interest to the Junior Subordinated Debt Securities or
the guarantee in respect thereof, as the case may be (other than (i) dividends
or distributions in shares of, or options, warrants, rights to subscribe for or
purchase shares of, common shares of the Guarantor, (ii) any declaration of a
dividend in connection with the implementation of a stockholder's rights plan,
or the issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (iii) payments under any
preferred securities guarantee, (iv) the purchase of fractional shares resulting
from a reclassification of the Guarantor's capital stock, (v) the exchange or
conversion of any class or series of the Guarantor's (or any Subsidiary's)
capital stock for another class or series of the Guarantor's (or any
Subsidiary's) capital stock or of any class or series of the Guarantor's (or any
Subsidiary's) indebtedness, (vi) the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged;
and (vii) repurchases, redemptions or other acquisitions of shares of capital
stock of the Guarantor or any subsidiary under any employment agreement or
benefit plan for the benefit of the Guarantor's directors, officers, or
employees, or any dividend reinvestment or director, officer or employee stock
purchase plan of the Guarantor) if at such time (1) there shall have occurred
any event of which the Guarantor has actual knowledge that (A) with the giving
of notice or the lapse of time or both, would constitute an Event of Default
under the Indenture and (B) in respect of which the Guarantor, as the case may
be, shall not have taken reasonable steps to cure, (2) the Guarantor
14
shall be in default with respect to its payment of any obligations under this
Guarantee Agreement or (3) the Guarantor shall have given notice of its election
to begin an Extension Period (as defined in the Indenture) with respect to the
Junior Subordinated Debt Securities as provided in the Indenture and shall not
have rescinded such notice, or such Extension Period, or any extension thereof,
shall be continuing.
SECTION 6.2 Ranking
-------
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to Senior
Indebtedness (as defined in the Indenture), to the same extent and in the same
manner that the Junior Subordinated Debt Securities are subordinated to Senior
Indebtedness pursuant to the Indenture (except as indicated below), it being
understood that the terms of Article XVI of the Indenture shall apply to the
obligations of the Guarantor under this Guarantee Agreement as if (x) such
Article XVI were set forth herein in full and (y) such guarantee obligations
provided were substituted for the term "Securities" appearing in such Article
XVI and (ii) senior to the Guarantor's common shares.
SECTION 6.3 Pari Passu Guarantees
---------------------
This Guarantee Agreement shall rank pari passu with any similar
guarantee agreements issued by the Guarantor on behalf of holders of preferred
securities of any other trust, partnership or other entity affiliated with the
Guarantor which is a financing vehicle of the Guarantor or any subsidiary of the
Guarantor in connection with the issuance by such entity of preferred securities
or other securities which are similar to preferred securities that are
guaranteed by the Guarantor pursuant to an instrument that ranks pari passu with
or junior in right of payment to this Guarantee Agreement.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Guarantee shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of the Junior Subordinated Debt Securities to all Holders in
exchange for the Preferred Securities or (iii) full payment of the amounts
payable in accordance with the Trust Agreement upon liquidation of the Issuer.
Notwithstanding the foregoing, this Guarantee Agreement 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 with respect to the Preferred Securities
or under this Guarantee Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger,
or sale involving the Guarantor that is permitted under Article 8 of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2 Amendments
----------
Except with respect to any changes that do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required), and any changes to Sections 5 and 6.1 hereto (which may only
be amended in writing with the prior approval of each Holder of the Preferred
Securities then outstanding) this Guarantee Agreement may only be amended in
writing by the parties hereto with the prior approval of the Holders of at least
a Majority in liquidation preference of the Preferred Securities. The provisions
of Article VI of the Trust Agreement concerning meetings of Holders apply to the
giving of such approval.
SECTION 8.3 Notices
-------
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) 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 Guarantor and the Holders):
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
(b) 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):
PartnerRe Ltd.
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Counsel
with a copy to:
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Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. X'Xxxxxxxx, Esq.
(c) If given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
PartnerRe Capital Trust III
c/o PartnerRe Ltd.
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Counsel
with a copy to:
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
(d) If given to any Holder, at the 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.
SECTION 8.4 Benefit
-------
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
SECTION 8.5 Holders of Preferred Securities as Third Party Beneficiaries.
------------------------------------------------------------
The Guarantor hereby acknowledges that, to the extent specifically set
forth herein, the holders of the Preferred Securities of a PartnerRe Trust shall
expressly be third party beneficiaries of this Guarantee Agreement.
SECTION 8.6 Governing Law
-------------
THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE
AND PERFORMED IN THAT STATE.
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SECTION 8.7 Interpretation
--------------
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined
in the preamble hereto have the respective meanings assigned to them in this
Section 1.1 or in the Trust Agreement, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement, unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine, or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.8 Submission to Jurisdiction
--------------------------
The Guarantor agrees that any judicial proceedings instituted in
relation to any matter arising under this Guarantee Agreement may be brought in
any United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgment rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints, for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement, PartnerRe U.S.
Corporation, Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000, as its agent to
receive on its behalf service of all process (with a copy of all such service of
process to be delivered to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. X'Xxxxxxxx, Esq.) brought against it
with respect to any such proceeding in any such court in The City of New York,
such service being hereby acknowledged by the Guarantor to be effective and
binding service on it in every respect whether or not the Guarantor shall then
be doing or shall have at any time done business in New York. Such appointment
shall be irrevocable so long as any of the Securities or the obligations of the
18
Guarantor hereunder remain outstanding, or until the appointment of a successor
located in New York or Connecticut by the Guarantor and such successor's
acceptance of such appointment. Upon such acceptance, the Guarantor shall notify
the Guarantee Trustee in writing of the name and address of such successor. The
Guarantor further agrees for the benefit of the Guarantee Trustee and the
Holders to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of said PartnerRe U.S. Corporation in full force and
effect so long as any of the Preferred Securities or the obligations of the
Guarantor hereunder shall be outstanding. The Guarantee Trustee shall not be
obligated and shall have no responsibility with respect to any failure by the
Guarantor to take any such action. Nothing herein shall affect the right to
serve process in any other manner permitted by any law or limit the right of the
Guarantee Trustee or any Holder to institute proceedings against the Guarantor
in the courts of any other jurisdiction or jurisdictions.
SECTION 8.9 Judgment Currency
-----------------
The Guarantor agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of any Guarantee
Payment (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Guarantee Trustee
could purchase in The City of New York the requisite amount of the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which a final unappealable judgment is given and (b) its obligations
under this Guarantee Agreement to make payments in the Required Currency (i)
shall not be discharged or satisfied by any tender, or any recovery pursuant to
any judgment (whether or not entered in accordance with clause (a)), in any
currency other than the Required Currency, except to the extent that such tender
or recovery shall result in the actual receipt, by the payee, of the full amount
of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for
the purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required Currency
so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Guarantee Agreement. For purposes of
the foregoing, "New York Banking Day" means any day except a Saturday, Sunday or
a legal holiday in The City of New York or a day on which banking institutions
in The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
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THIS PREFERRED SECURITIES GUARANTEE AGREEMENT is executed as of the day
and year first above written.
PARTNERRE LTD.,
as Guarantor
By:
-------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Guarantee Trustee
By:
-------------------------------------
Name:
Title:
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