DEBT SECURITIES GUARANTEE AGREEMENT BETWEEN PARTNERRE LTD. (AS GUARANTOR) AND THE BANK OF NEW YORK (AS GUARANTEE TRUSTEE) DATED AS OF May 27, 2008
Exhibit
4.3
BETWEEN
(AS
GUARANTOR)
AND
THE BANK
OF NEW YORK
(AS
GUARANTEE TRUSTEE)
DATED AS
OF
May 27,
2008
TABLE
OF CONTENTS
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Page
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ARTICLE
1
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DEFINITIONS
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Section
1.01. Definitions
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1
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ARTICLE
2
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TRUST
INDENTURE ACT
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Section
2.01. Trust Indenture Act: Application
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3
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Section
2.02. List of Holders
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3
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Section
2.03. Reports by the Guarantee Trustee
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4
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Section
2.04. Periodic Reports to the Guarantee Trustee
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4
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Section
2.05. Evidence of Compliance with Conditions
Precedent
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4
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Section
2.06. Events of Default; Waiver
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4
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Section
2.07. Event of Default; Notice
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4
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Section
2.08. Conflicting Interests
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5
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ARTICLE
3
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POWERS,
DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
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Section
3.01. Powers, and Duties of the Guarantee
Trustee
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5
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Section
3.02. Certain Rights of the Guarantee Trustee
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7
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Section
3.03. Indemnity
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9
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ARTICLE
4
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GUARANTEE
TRUSTEE
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Section
4.01. Guarantee Trustee; Eligibility
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9
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Section
4.02. Appointment, Removal and Resignation of Guarantee
Trustees
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10
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ARTICLE
5
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GUARANTEE
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Section
5.01. Guarantee
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10
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Section
5.02. Waiver of Notice and Demand
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11
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Section
5.03. Obligations Not Affected
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11
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Section
5.04. Rights of Holders
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12
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Section
5.05. Guarantee of Payment
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12
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Section
5.06. Subrogation
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12
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Section
5.07. Independent Obligations
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12
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Section
5.08. Net Payments
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13
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ARTICLE
6
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LIMITATION
OF TRANSACTIONS; RANKING
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Section
6.01. Limitation of Transactions
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14
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Section
6.02. Ranking
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15
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Section
6.03. Pari Passu Guarantees
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15
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ARTICLE
7
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TERMINATION
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Section
7.01. Termination
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15
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ARTICLE
8
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MISCELLANEOUS
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Section
8.01. Successors and Assigns
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16
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Section
8.02. Amendments
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16
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Section
8.03. Notices
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16
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Section
8.04. Benefit
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17
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Section
8.05. Governing Law
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18
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Section
8.06. Interpretation
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18
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Section
8.07. Submission to Jurisdiction
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18
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Section
8.08. Judgment Currency
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19
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Section
8.09. Waiver Of Jury Trial
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20
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Section
8.10. Force Majeure
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20
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ii
GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (this “Guarantee Agreement” or this
“Guarantee”), dated as
of May 27, 2008, 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 XX 00, Bermuda, and
The Bank of New York, a New York banking corporation, having a corporate trust
office located at 000 Xxxxxxx Xxxxxx, Xxxxx 0X, 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 Notes (as defined herein) issued by PartnerRe Finance A LLC, a
Delaware limited liability company (the “Issuer”).
WHEREAS,
pursuant to an Indenture, dated as of May 27, 2008 (the “Indenture”), among the
Issuer, the Guarantor and the Guarantee Trustee, as trustee thereunder, the
Issuer may issue senior unsecured debt securities (the “Notes”).
WHEREAS,
as incentive for the Holders (as defined in the Indenture) to purchase such
Notes, the Guarantor desires irrevocably and unconditionally, to guarantee the
obligations of the Issuer under the Indenture.
NOW,
THEREFORE, in consideration of the purchase and acceptance of the Notes by the
Holders thereof, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders.
ARTICLE
1
Definitions
Section
1.01. Definitions. 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 Indenture as in effect on the date
hereof.
“Additional Amounts” means any
additional amounts which are required hereby or by the terms of the Notes, under
circumstances specified herein or therein, to be paid by the Guarantor in
respect of certain taxes, assessments or other governmental charges imposed on
Holders specified herein and therein and which are owing to such
Holders.
“Affiliate” of any specified
Person means any other Person directly or 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 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 Chief Legal Counsel, the Secretary or an Assistant
Secretary, of such Person.
“Event of Default” means a
default by the Guarantor on any of its payment or other obligations under this
Guarantee Agreement; provided,
however, that, except with respect to a payment default, the Guarantor
shall have received notice of default and shall not have cured such default
within 60 days after receipt of such notice.
“Guarantee Trustee” means The
Bank of New York, until a Successor 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.
“Indenture” has the meaning set
forth in the preamble hereto.
“List of Holders” has the
meaning specified in Section 2.02(a).
“Notes” has the meaning set
forth in the preamble hereto.
“Officers’ Certificate” means,
with respect to any Person, a 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
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(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, 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 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 possessing the qualifications to act as
Guarantee Trustee under Section 4.01.
“Trust Indenture Act” means the
Trust Indenture Act of 1939, as amended.
ARTICLE
2
Trust
Indenture Act
Section
2.01. Trust
Indenture Act: Application.
(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.
Section
2.02. List of
Holders.
(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
3
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
2.03. Reports by
the Guarantee Trustee. Within 60 days after May 15 of each
year commencing with May 15, 2009, 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
2.04. Periodic
Reports to the Guarantee Trustee. 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
2.05. Evidence of
Compliance with Conditions Precedent. 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
2.06. Events of
Default; Waiver. The holders of not less than a majority of
the outstanding principal amount of the Notes 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.
Section
2.07. Event of
Default; Notice.
(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 by the Guarantor of any amount
due under this Guarantee Agreement, 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 Responsible Officers of the
4
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 shall have actual knowledge or
shall have obtained written notice, of such Event of Default.
Section
2.08. Conflicting
Interests. The Indenture 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
3
Powers,
Duties and Rights of Guarantee Trustee
Section
3.01. Powers, and
Duties of the Guarantee Trustee.
(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 5.04(d) 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 hereunder or under the Indenture 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 hereunder or
under the Indenture 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 hereunder or under the Indenture (that has
not been cured or waived pursuant to Section 2.06 of this Guarantee Agreement or
Section 5.13 of the
Indenture), the Guarantee Trustee shall exercise such of the rights and
powers vested in it by this Guarantee Agreement, and use the same degree of care
and skill in its exercise thereof, as a
5
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 hereunder or under the Indenture and
after the curing or waiving of any 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 (including, without limitation, for
consequential damages) 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 of the outstanding principal amount of the Notes 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
6
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
3.02. Certain
Rights of the Guarantee Trustee.
(a) Subject
to the provisions of Section 3.01:
(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
7
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 3.02(a)(v) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of an Event of Default hereunder or under the
Indenture, 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 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 not less than a majority of the
outstanding principal amount of the Notes,
(B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and
8
(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
3.03. Indemnity. 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 other guarantee that may be
granted under this Guarantee Agreement as a result of any amount due to it under
this Guarantee Agreement.
The
provisions of this Section 3.03 shall survive the termination of this Guarantee
Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE
4
Guarantee
Trustee
Section
4.01. Guarantee
Trustee; Eligibility.
(a) There
shall at all times be a Guarantee Trustee which shall:
(i) not
be an Affiliate of the Guarantor or the Issuer; 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(a) 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 4.01(a)(ii), the combined
capital and surplus of
9
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 4.01(a), the Guarantee Trustee shall immediately resign in the manner
and with the effect set out in Section
4.02(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
4.02. Appointment,
Removal and Resignation of Guarantee Trustees .
(a) Subject
to Section 4.02(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 4.02(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 4.02 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.
ARTICLE
5
Guarantee
Section
5.01. Guarantee. The
Guarantor hereby irrevocably and unconditionally guarantees to each Holder the
due and punctual payment of the
10
principal
of, any premium and interest on, and any Additional Amounts, if applicable, with
respect to any Note held by such Holder, when and as the same shall become due
and payable, whether at maturity, by acceleration, redemption, repayment or
otherwise, in accordance with the terms of such Note and of the Indenture, and
to the Trustee payment of all amounts due to the Trustee relating to the
performance of its duties under the Indenture. The Guarantor further agrees
that, as between the Guarantor, on the one hand, and the Holders and the
Guarantee Trustee, on the other hand, the maturity of the Notes guaranteed
hereby may be accelerated as provided in Article 5 of the Indenture for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Notes guaranteed
hereby.
Section
5.02. 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, 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
5.03. Obligations
Not Affected. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee shall be
as if it were a principal debtor, 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 Notes to be performed or observed by the
Issuer;
(b) 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 Notes, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(c) 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;
(d) any
invalidity or unenforceability of, or defect or deficiency in, the Notes;
or
(e) any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor, it being the intent of this
11
Section
5.03 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
5.04. Rights of
Holders. The Guarantor expressly acknowledges that: (a) this
Guarantee Agreement will be deposited with the Guarantee Trustee to be held for
the benefit of the Holders; (b) the Guarantee Trustee has the right to enforce
this Guarantee Agreement on behalf of the Holders; (c) the holders of not less
than a majority of the principal amount of the outstanding Notes 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 (d) 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
5.05. Guarantee of
Payment. This Guarantee creates a guarantee of payment and not
of collection. This Guarantee Agreement will not be discharged except by payment
in full of all amounts (without duplication of amounts theretofore paid by the
Issuer) owed under the Notes.
Section
5.06. 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
applicable 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
5.07. Independent
Obligations. The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Notes, and that the Guarantor shall be liable as principal and as debtor
hereunder to make all payments with respect to the Notes pursuant to the terms
of this Guarantee Agreement notwithstanding the occurrence of any event referred
to in subsections (a) through (e), inclusive, of Section 5.03
hereof.
12
Section
5.08. Net
Payments. All 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 this 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
Note 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 the Indenture and 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 Note; (B) presented such Note for payment in the
relevant taxing jurisdiction or any political subdivision thereof, unless such
Note could not have been presented for payment elsewhere; or (C) presented such
Note more than thirty (30) days after the date on which the payment in respect
of such Note 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 Note for payment on any day within such period
of thirty (30) days;
13
(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 Note to
comply with any reasonable request by the Issuer 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 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 Note, 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 Note.
ARTICLE
6
Limitation
of Transactions; Ranking
Section
6.01. Limitation of
Transactions. The Guarantor hereby covenants and agrees that,
so long as any Notes 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 equal to or junior in interest
14
to the
Notes 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 equal to
or junior in interest to the Notes 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) the purchase of fractional shares resulting from a
reclassification of the Guarantor’s capital stock, (iv) 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, (v) 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 (vi) 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 shall not have
taken reasonable steps to cure, or (2) the Guarantor shall be in default with
respect to its payment of any obligations under this Guarantee
Agreement.
Section
6.02. Ranking. This
Guarantee Agreement shall constitute a senior unsecured obligation of the
Guarantor and shall rank equally with all senior unsecured indebtedness of the
Guarantor from time to time outstanding.
Section
6.03. Pari Passu
Guarantees. This Guarantee Agreement shall rank pari passu with any similar
guarantee agreements issued by the Guarantor on behalf of holders of senior
unsecured notes issued by any entity affiliated with the Guarantor which is a
financing vehicle of the Guarantor.
ARTICLE
7
Termination
Section
7.01. Termination. This Guarantee shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Notes and all other amounts then due and payable under
the Indenture, or (ii) the full payment of the amounts payable in accordance
with the Indenture. Notwithstanding the foregoing, this Guarantee Agreement will
continue to be
15
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 Notes or under this
Guarantee Agreement.
ARTICLE
8
Miscellaneous
Section
8.01. 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 Notes 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
8.02. 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 5.01 and Section 6.01 hereof, which may only be
amended in writing with the prior approval of each Holder, this Guarantee
Agreement may only be amended in writing by the parties hereto with the prior
approval of the holders of not less than a majority of the outstanding principal
amount of the Notes. The provisions of Article 15 of the Indenture concerning
meetings of Holders apply to the giving of such approval.
Section
8.03. 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):
The Bank
of New York
000
Xxxxxxx Xxxxxx
Xxxxx
0X
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Corporate
Trust Administration
(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):
16
00 Xxxxx
Xxx Xxxx
Xxxxxxxx
XX 00
Xxxxxxx
Xxxxxxxxx:
Chief Legal Counsel
with a
copy to:
Xxxxx Xxxx
& Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx X. Xxxxx, 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
Finance A LLC
c/o
PartnerRe Ltd.
00 Xxxxx
Xxx Xxxx
Xxxxxxxx
XX 00
Xxxxxxx
Xxxxxxxxx:
Chief Legal Counsel
with a
copy to:
The Bank
of New York
000
Xxxxxxx Xxxxxx
Xxxxx
0X
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Corporate
Trust Administration
(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
8.04. Benefit. This
Guarantee is solely for the benefit of the Holders and is not separately
transferable from the Notes.
17
Section
8.05. 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.
Section
8.06. 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 Section 1.01 or in the
Indenture, as the case may be;
(b) a
term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(c) all
references to “the
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
8.07. 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
18
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 Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx X. Xxxxx, 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 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 Notes 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
8.08. 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
19
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.
Section
8.09. Waiver Of
Jury Trial. EACH OF THE GUARANTOR AND THE GUARANTEE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTEE.
Section
8.10. Force
Majeure. In no event shall the Guarantee Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Guarantee Trustee shall use reasonable
efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
[THE REST
OF THIS PAGE LEFT INTENTIONALLY BLANK]
20
THIS
GUARANTEE AGREEMENT is executed as of the day and year first above
written.
|
as
Guarantor
|
|||
|
By:
|
/s/ Xxxxxx Xxxxxxxxx | ||
| Name: | Xxxxxx Xxxxxxxxx | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
|
THE
BANK OF NEW YORK,
as
Guarantee Trustee
|
|||
|
By:
|
/s/ Xxxxx Xxxxxxxx | ||
| Name: | Xxxxx Xxxxxxxx | ||
| Title: | Assistant Treasurer | ||
