Exhibit 10.62
CONTINUING AGREEMENT OF GUARANTY
This Continuing Agreement of Guaranty (this "Guaranty"), dated as of this
30th day of May, 2002, is given by ACE LIMITED, a company limited by shares
organized under the laws of the Cayman Islands (the "Guarantor"), in favor of
ABN AMRO Bank N.V., as agent for the Banks (the "Agent"), in connection with
that Credit Agreement, dated as of the date hereof, by and among ACE GUARANTY RE
INC., a Maryland corporation (the "Borrower"), the Banks now or hereafter party
thereto (the "Banks"), the Agent, and Commerzbank AG, New York and Grand Cayman
Branches, Fleet National Bank and Westdeutsche Landesbank Girozentrale, New York
Branch, as Co-Documentation Agents (as amended, restated, modified, or
supplemented from time to time hereafter, the "Credit Agreement"). Capitalized
terms not otherwise defined herein shall have the respective meanings ascribed
to them by the Credit Agreement.
1. Guarantied Obligations. To induce the Agent and the Banks to make loans and
grant other financial accommodations to the Borrower under the Credit Agreement,
Guarantor hereby unconditionally and irrevocably guaranties to the Agent and
each Bank the full and punctual payment and performance when due (whether on
demand, at stated maturity, by acceleration, or otherwise and including any
amounts which would become due but for the operation of an automatic stay under
the federal bankruptcy code of the United States or any similar laws of any
country or jurisdiction) of all Obligations, including all Obligations,
liabilities, and indebtedness from time to time of the Borrower to the Agent or
any of the Banks under or in connection with the Credit Agreement or any other
Loan Document, whether for principal, interest, fees, indemnities, expenses, or
otherwise, and all refinancings or refundings thereof, whether such obligations,
liabilities, or indebtedness are direct or indirect, secured or unsecured, joint
or several, absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising (and including obligations,
liabilities, and indebtedness arising or accruing after the commencement of any
bankruptcy, insolvency, reorganization, or similar proceeding with respect to
the Borrower or which would have arisen or accrued but for the commencement of
such proceeding, even if the claim for such obligation, liability, or
indebtedness is not enforceable or allowable in such proceeding, and including
all obligations, liabilities, and indebtedness arising from any extensions of
credit under or in connection with the Loan Documents from time to time,
regardless whether any such extensions of credit are in excess of the amount
committed under or contemplated by the Loan Documents or are made in
circumstances in which any condition to an extension of credit is not satisfied)
(all of the foregoing obligations, liabilities and indebtedness are referred to
herein collectively as the "Guarantied Obligations" and each as a "Guarantied
Obligation"). Without limitation of the foregoing, any of the Guarantied
Obligations shall be and remain Guarantied Obligations entitled to the benefit
of this Guaranty if the Agent or any of the Banks (or any one or more assignees
or transferees thereof) from time to time assign or otherwise transfer all or
any portion of their respective rights and obligations under and pursuant to the
Loan Documents, or any other Guarantied Obligations, to any other Person. In
furtherance of the foregoing, Guarantor agrees as follows.
2. Guaranty. If Borrower at any time fails to fully and punctually pay or
perform any of the Guarantied Obligations when due, Guarantor hereby promises to
pay and perform all such Guarantied Obligations immediately upon demand of the
Agent and the Banks or any one or more of them. All payments made hereunder
shall be made by Guarantor in immediately available funds in United States
Dollars and shall be made without setoff, counterclaim, withholding, or other
deduction of any nature.
3. Obligations Absolute. The obligations of Guarantor hereunder shall not be
discharged or impaired or otherwise diminished by any failure, default,
omission, or delay, willful or otherwise, by any Bank, the Agent, or Borrower or
any other obligor on any of the Guarantied Obligations, or by any other act or
thingor omission or delay to do any other act or thing which may or might in any
manner or to any
extent vary the risk of Guarantor or would otherwise operate as a discharge of
Guarantor as a matter of law or equity. Without limiting the generality of the
foregoing, Guarantor hereby consents to, at any time and from time to time, and
the obligations of Guarantor hereunder shall not be diminished, terminated, or
otherwise similarly affected by any of the following:
(a) Any lack of genuineness, legality, validity, enforceability or allowability
(in a bankruptcy, insolvency, reorganization or similar proceeding, or
otherwise), or any avoidance or subordination, in whole or in part, of any Loan
Document or any of the Guarantied Obligations and regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of the Guarantied Obligations, any of the terms of the Loan Documents, or any
rights of the Agent or the Banks or any other Person with respect thereto;
(b) Any increase, decrease, or change in the amount, nature, type or purpose of
any of the Guarantied Obligations (whether or not contemplated by the Loan
Documents as presently constituted); any change in the time, manner, method, or
place of payment or performance of, or in any other term of, any of the
Guarantied Obligations; any execution or delivery of any additional Loan
Documents; or any amendment, modification or supplement to, or refinancing or
refunding of, any Loan Document or any of the Guarantied Obligations;
(c) Any failure to assert any breach of or default under any Loan Document or
any of the Guarantied Obligations; any extensions of credit in excess of the
amount committed under or contemplated by the Loan Documents, or in
circumstances in which any condition to such extensions of credit has not been
satisfied; any other exercise or non-exercise, or any other failure, omission,
breach, default, delay, or wrongful action in connection with any exercise or
non-exercise, of any right or remedy against the Borrower or any other Person
under or in connection with any Loan Document or any of the Guarantied
Obligations; any refusal of payment or performance of any of the Guarantied
Obligations, whether or not with any reservation of rights against Guarantor or
any other guarantor; or any application of collections (including but not
limited to collections resulting from realization upon any direct or indirect
security for the Guarantied Obligations) to other obligations, if any, not
entitled to the benefits of this Guaranty, in preference to Guarantied
Obligations entitled to the benefits of this Guaranty, or if any collections are
applied to Guarantied Obligations, any application to particular Guarantied
Obligations;
(d) Any taking, exchange, amendment, modification, supplement, termination,
subordination, release, loss, or impairment of, or any failure to protect,
perfect, or preserve the value of, or any enforcement of, realization upon, or
exercise of rights, or remedies under or in connection with, or any failure,
omission, breach, default, delay, or wrongful action by the Agent or the Banks,
or any of them, or any other Person in connection with the enforcement of,
realization upon, or exercise of rights or remedies under or in connection with,
or any other action or inaction by the Agent or the Banks, or any of them, or
any other Person in respect of, any direct or indirect security for any of the
Guarantied Obligations. As used in this Guaranty, "direct or indirect security"
for the Guarantied Obligations, and similar phrases, includes any collateral
security, guaranty, suretyship, letter of credit, capital maintenance agreement,
put option, subordination agreement, or other right or arrangement of any nature
providing direct or indirect assurance of payment or performance of any of the
Guarantied Obligations, made by or on behalf of any Person;
(e) Any merger, consolidation, liquidation, dissolution, winding-up, charter
revocation, or forfeiture, or other change in, restructuring or termination of
the corporate structure or existence of, the Borrower or any other Person; any
bankruptcy, insolvency, reorganization or similar proceeding with respect to the
Borrower or any other Person; or any action taken or election made by the Agent
or the Banks, or any of
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them (including any election under Section 1111(b)(2) of the United States
Bankruptcy Code), the Borrower, or any other Person in connection with any such
proceeding;
(f) Any defense, setoff, or counterclaim which may at any time be available to
or be asserted by the Borrower or any other Person with respect to any Loan
Document or any of the Guarantied Obligations (other than indefeasible payment
and performance of the Guarantied Obligations in full); or any discharge by
operation of law or release of the Borrower or any other Person from the
performance or observance of any Loan Document or any of the Guarantied
Obligations;
(g) Any other event or circumstance, whether similar or dissimilar to the
foregoing, and whether known or unknown, which might otherwise constitute a
defense available to, or limit the liability of, a guarantor or a surety,
excepting only full, strict, and indefeasible payment and performance of the
Guarantied Obligations in full.
Guarantor acknowledges, consents, and agrees that other guarantors may
guaranty all or any portion of the Guarantied Obligations pursuant to Section
10.18 of the Credit Agreement and Guarantor affirms that its obligations shall
continue hereunder undiminished.
4. Waivers, etc. Guarantor hereby waives any defense to or limitation on its
obligations under this Guaranty arising out of or based on any event or
circumstance referred to in Section 3 hereof. Without limitation and to the
fullest extent permitted by applicable law, Guarantor waives each of the
following:
(a) All notices, disclosures and demands of any nature which otherwise might be
required from time to time to preserve intact any rights against Guarantor,
including the following: any notice of any event or circumstance described in
Section 3 hereof; any notice required by any law, regulation or order now or
hereafter in effect in any jurisdiction; any notice of nonpayment,
nonperformance, dishonor, or protest under any Loan Document or any of the
Guarantied Obligations; any notice of the incurrence of any Guarantied
Obligation; any notice of any default or any failure on the part of the Borrower
or any other Person to comply with any Loan Document or any of the Guarantied
Obligations or any direct or indirect security for any of the Guarantied
Obligations; and any notice of any information pertaining to the business,
operations, condition (financial or otherwise) or prospects of the Borrower or
any other Person;
(b) Any right to any marshalling of assets, to the filing of any claim against
the Borrower or any other Person in the event of any bankruptcy, insolvency,
reorganization or similar proceeding, or to the exercise against the Borrower or
any other Person of any other right or remedy under or in connection with any
Loan Document or any of the Guarantied Obligations or any direct or indirect
security for any of the Guarantied Obligations; any requirement of promptness or
diligence on the part of the Agent or the Banks, or any of them, or any other
Person; any requirement to exhaust any remedies under or in connection with, or
to mitigate the damages resulting from default under, any Loan Document or any
of the Guarantied Obligations or any direct or indirect security for any of the
Guarantied Obligations; any benefit of any statute of limitations; and any
requirement of acceptance of this Guaranty or any other Loan Document, and any
requirement that Guarantor receive notice of any such acceptance;
(c) Any defense or other right arising by reason of any law now or hereafter in
effect in any jurisdiction pertaining to election of remedies (including
anti-deficiency laws, "one action" laws or the like), or by reason of any
election of remedies or other action or inaction by the Agent or the Banks, or
any of them (including commencement or completion of any judicial proceeding or
nonjudicial sale or other action in respect of collateral security for any of
the Guarantied Obligations), which results in denial or impairment of the right
of the Agent or the Banks, or any of them, to seek a deficiency against
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the Borrower or any other Person or which otherwise discharges or impairs any of
the Guarantied Obligations; and
(d) Any and all defenses it may now or hereafter have based on principles of
suretyship, impairment of collateral, or the like.
Notwithstanding any other term herein to the contrary, the Guarantied
Obligations shall exclude the amount of any increase in the aggregate principal
amount of the Commitments (together with the interest accrued on the amount of
such increased principal) over and above the aggregate principal amount of the
Commitments as set forth in the Credit Agreement as of the date of this Guaranty
(or over and above any increased aggregate principal amount of the Commitments
to which Guarantor has consented in accordance with the terms of this sentence)
unless the consent of Guarantor has been provided to the Agent at a time that is
substantially contemporaneous with or after the date of such increase; this
provision is limited solely to an increase in the aggregate principal amount of
the Commitments, as more fully set forth directly above, and to no other
circumstance. For the avoidance of doubt, it is not the intent of the waivers
set forth in this Section 4 to, and such waivers shall not, waive the necessity
for a demand to be made in accordance with the first sentence of Section 2
hereof.
5. Representations and Warranties. Guarantor hereby makes the following
representations and warranties as of the date hereof:
(a) Guarantor is duly organized, validly existing, and in good standing under
the laws of the Cayman Islands; and, Guarantor is validly existing and in good
standing in all jurisdictions in which it is domiciled or doing business, except
where the failure to so qualify would not be reasonably likely to have a
material adverse effect on the business, properties, assets, financial
condition, results of operations, or prospects of Guarantor (a "Material Adverse
Effect"); and, this Guaranty constitutes the legal, valid, and binding
obligation of Guarantor, enforceable against Guarantor and its successors in
accordance with its terms; Guarantor has the requisite power and authority to
enter into, execute, deliver and carry out this Guaranty and to perform its
obligations hereunder and all such actions have been duly authorized by all
necessary proceedings;
(b) the execution and delivery of this Guaranty and the consummation of the
transactions herein contemplated and compliance with the terms and provisions
hereof by Guarantor will not conflict with, constitute a default under or result
in any breach of any material agreement or instrument to which Guarantor is
bound or any applicable Law material to the business or operations of Guarantor
or material to the validity or enforceability of this Guaranty;
(c) the information, financial statements and other financial data furnished by
Guarantor to the Agent are true and correct in all material respects and present
fairly the financial condition of Guarantor as of the date of such information,
statements, or other data; all other information given to the Agent by Guarantor
with respect to Guarantor is, as of the date of such information (or, if not
dated, as of the date of its delivery to the Agent), accurate and correct in all
material respects and is, as of the date of such information (or, if not dated,
as of the date of its delivery to the Agent), complete insofar as completeness
may be necessary to give the Agent true and accurate knowledge of the subject
matter thereof; and
(d) there are no actions, suits, proceedings, or governmental investigations
pending or, to the knowledge of Guarantor, threatened against Guarantor which
are reasonably likely to have a Material Adverse Effect.
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6. Senior Debt Status. The obligations of Guarantor under this Guaranty rank
and will rank at least pari passu in priority of payment with all other senior
unsecured Indebtedness of Guarantor.
7. Reinstatement. This Guaranty is a continuing obligation of Guarantor and
shall remain in full force and effect notwithstanding that no Guarantied
Obligations may be outstanding from time to time and notwithstanding any other
event or circumstance. Upon termination of all Commitments and indefeasible
payment in full of all Guarantied Obligations, this Guaranty shall terminate;
provided, however, that this Guaranty shall continue to be effective or be
reinstated, as the case may be, any time any payment of any of the Guarantied
Obligations is rescinded, recouped, avoided, or must otherwise be returned or
released by any Bank or the Agent upon or during the insolvency, bankruptcy, or
reorganization of, or any similar proceeding affecting, Borrower or for any
other reason whatsoever, all as though such payment had not been made and was
due and owing.
8. Subrogation. Guarantor shall not exercise any rights against Borrower or any
other guarantor arising in connection with the Guarantied Obligations (including
rights of subrogation, contribution, and the like) until the Guarantied
Obligations have been indefeasibly paid in full and all Commitments have been
terminated. If, prior to the indefeasible payment in full of the Guarantied
Obligations and the termination of the Commitments, any amount shall be paid to
Guarantor by or on behalf of Borrower or any other guarantor by virtue of any
right of subrogation, contribution, or the like, such amount shall be deemed to
have been paid to Guarantor for the benefit of, and shall be held in trust for
the benefit of, the Agent and the Banks and shall forthwith be paid to the Agent
to be credited and applied upon the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms of the Credit Agreement.
9. No Stay. Without limitation of any other provision of this Guaranty, if any
declaration of default or acceleration or other exercise or condition to
exercise of rights or remedies under or with respect to any Guarantied
Obligation shall at any time be stayed, enjoined, or prevented for any reason
(including stay or injunction resulting from the pendency against the Borrower
or any other Person of a bankruptcy, insolvency, reorganization, or similar
proceeding), Guarantor agrees that, for the purposes of this Guaranty and its
obligations hereunder, the Guarantied Obligations shall be deemed to have been
declared in default or accelerated, and such other exercise or conditions to
exercise shall be deemed to have been taken or met.
10. Taxes.
(a) No Deductions. All payments made by Guarantor hereunder shall be made free
and clear of and without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all liabilities with respect
thereto, excluding taxes imposed by the United States on the overall net income
of any Bank and taxes that are imposed on the overall net income (and franchise
taxes imposed in lieu thereof) of any Bank by the state or foreign jurisdiction
under the laws of which such Bank is organized or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as "Taxes"). If
Guarantor shall be required by Law to deduct any Taxes from or in respect of any
sum payable under this Guaranty, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Subsection 10(a)) each Bank
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Guarantor shall make such deductions, and (iii)
Guarantor shall timely pay the full amount deducted to the relevant tax
authority or other authority in accordance with applicable Law.
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(b) Stamp Taxes. In addition, Guarantor agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges, or
similar levies which arise from any payment made hereunder or from the
execution, delivery, or registration of, or otherwise with respect to, this
Guaranty (hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes Paid by any Bank. Guarantor shall indemnify each
Bank for the full amount of Taxes or Other Taxes (including any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Subsection) paid
by any Bank and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be made
within 30 days from the date Guarantor receives written demand therefor.
(d) Certificate. Within 30 days after the date of any payment of any Taxes by
Guarantor, Guarantor shall furnish to the applicable Bank, the original or a
certified copy of a receipt evidencing payment thereof.
(e) Banks to Obtain Relevant Exemptions. Any Bank as to which payments under
this Guaranty are subject to Taxes or Other Taxes and which is entitled to an
exemption from or reduction of such Taxes or Other Taxes pursuant the laws or
regulations of any relevant jurisdiction or any treaty shall deliver to the
Agent and Guarantor, no later than the latest time or times prescribed by
applicable law for the effectiveness thereof, two original copies of such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without payment of Taxes or Other Taxes or
at a reduced rate. If any Bank fails to timely deliver any such documentation,
Guarantor shall not be required to increase any amount payable to such Bank
pursuant to Subsection 10(a) hereof or to otherwise indemnify such Bank under
Subsection 10(c) hereof to the extent such increase or indemnity would not have
been required if such Bank had delivered such documentation; provided, however,
that should a Bank become subject to Taxes or Other Taxes because of its failure
to deliver a form required hereby, Guarantor shall take such steps as such Bank
shall reasonably request to assist such Bank to recover such Taxes or Other
Taxes.
(f) Survival. Without prejudice to the survival of any other agreement of
Guarantor hereunder, the agreements and obligations of Guarantor contained in
this Section 10 shall survive the payment in full of the Obligations and the
termination of all Commitments.
11. Judgment Currency.
(a) Currency Conversion Procedures for Judgments. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due hereunder
in any currency (the "Original Currency") into another currency (the "Other
Currency"), Guarantor hereby agrees, to the fullest extent permitted by Law,
that the rate of exchange used shall be that at which in accordance with normal
banking procedures the Agent could purchase the Original Currency with the Other
Currency after any premium and costs of exchange on the Business Day preceding
that on which final judgment is given.
(b) Indemnity in Certain Events. The obligation of Guarantor in respect of any
sum due from Guarantor to any Bank under this Guaranty shall, notwithstanding
any judgment in an Other Currency, whether pursuant to a judgment or otherwise,
be discharged only to the extent that, on the Business Day following receipt by
the Agent of any sum adjudged to be so due in such Other Currency, the Agent may
in accordance with normal banking procedures purchase the Original Currency with
such Other Currency. If the amount of the Original Currency so purchased is less
than the sum originally due in the
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Original Currency, Guarantor agrees, as a separate obligation and
notwithstanding any such judgment or payment, to indemnify the Agent and the
Banks against such loss.
12. Notices. Guarantor agrees that all notices, statements, requests, demands,
and other communications (subject, however, to Section 17 hereof) under this
Guaranty shall be given to Guarantor at the address set forth on a Schedule to
the Credit Agreement (or such other address as Guarantor may designate in
writing to the Agent) and in the manner provided in Section 10.6 of the Credit
Agreement.
13. Counterparts; Telecopy Signatures. This Guaranty may be executed in any
number of counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts shall constitute but one and the same
instrument. Guarantor acknowledges and agrees that a telecopy transmission to
the Agent or any Bank of signature pages hereof signed on behalf of Guarantor
shall constitute effective and binding execution and delivery hereof by
Guarantor.
14. Setoff, Default Payments by Borrower.
(a) In the event that at any time any obligation of Guarantor now or hereafter
existing under this Guaranty shall have become due and payable, the Agent and
the Banks, or any of them, shall have the right from time to time to set off
against and apply to such due and payable amount any obligation of any nature of
any Bank or the Agent, or any subsidiary or affiliate of any Bank or the Agent,
to Guarantor, including all deposits (whether time or demand, general or
special, provisionally credited or finally credited, however evidenced) now or
hereafter maintained by Guarantor with the Agent or any Bank or any subsidiary
or affiliate thereof. Such right shall be absolute and unconditional in all
circumstances and, without limitation, shall exist whether or not the Agent or
the Banks, or any of them, shall have given any notice or made any demand under
this Guaranty or under such obligation to Guarantor, whether such obligation to
Guarantor is absolute or contingent, matured or unmatured (it being agreed that
the Agent and the Banks, or any of them, may deem such obligation to be then due
and payable at the time of such setoff), and regardless of the existence or
adequacy of any collateral, guaranty, or other direct or indirect security or
right or remedy available to the Agent or any of the Banks. Each of the Banks
and the Agent which exercises any right of set-off against Guarantor hereunder
agrees promptly to notify Guarantor after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of the Agent and the Banks
under this Section are in addition to such other rights and remedies (including
other rights of setoff and banker's lien) which the Agent and the Banks, or any
of them, may have, and nothing in this Guaranty or in any other Loan Document
shall be deemed a waiver of or restriction on the right of setoff or banker's
lien of the Agent and the Banks, or any of them.
(b) Upon the occurrence and during the continuation of any Event of Default
under the Credit Agreement, if any amount shall be paid to Guarantor by or for
the account of Borrower, such amount shall be held in trust for the benefit of
each Bank and the Agent and shall forthwith be paid to the Agent to be credited
and applied to the Guarantied Obligations when due and payable.
15. Construction. The section and other headings contained in this Guaranty are
for reference purposes only and shall not affect interpretation of this Guaranty
in any respect.
16. Successors and Assigns. This Guaranty shall be binding upon Guarantor, its
successors and assigns, and shall inure to the benefit of and be enforceable by
the Agent and the Banks, or any of them, and their respective successors and
assigns as permitted by the Credit Agreement. Without limitation of the
foregoing, the Agent and the Banks, or any of them (and any successive assignee
or transferee), from time to time may assign or otherwise transfer all or any
portion of their respective rights or obligations
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under the Loan Documents (including all or any portion of any commitment to
extend credit), or any other Guarantied Obligations, to any other Person
permitted pursuant to the Credit Agreement, and such Guarantied Obligations
(including any Guarantied Obligations resulting from an extension of credit by
such other Person under or in connection with the Loan Documents) shall be and
remain Guarantied Obligations entitled to the benefit of this Guaranty, and to
the extent of its interest in such Guarantied Obligations such other Person
shall be vested with all the benefits in respect thereof granted to the Agent
and the Banks in this Guaranty or otherwise.
17. CONSENT TO FORUM; WAIVER OF JURY TRIAL.
GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION
OF ANY NEW YORK STATE COURT OR FEDERAL COURT OF THE UNITED STATES OF AMERICA
SITTING IN NEW YORK CITY, AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
UPON IT, AND GUARANTOR HEREBY IRREVOCABLY APPOINTS THE BORROWER TO BE ITS AGENT
TO RECEIVE ON BEHALF OF ITSELF AND ITS RESPECTIVE PROPERTY SERVICE OF COPIES OF
THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY BE SERVED IN ANY
ACTION OR PROCEEDING AND HEREBY CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS
PROVIDED FOR BORROWER IN THE CREDIT AGREEMENT AND SERVICE SO MADE SHALL BE
DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. GUARANTOR WAIVES ANY
OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE.
GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING,
OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT TO THE FULL EXTENT PERMITTED BY LAW.
18. Governing Law, Waiver of Sovereign Immunity. This Guaranty shall be
construed and enforced in accordance with, and the obligations and rights of the
parties shall be governed by, the laws of the State of New York applicable to
contracts made and to be performed in said State. To the extent that Guarantor
has or hereafter may acquire any immunity from the jurisdiction of any court or
from any legal process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution, or otherwise) with respect
to itself or its property, Guarantor hereby irrevocably waives such immunity in
respect of its obligations under this Guaranty and any other Loan Document, and
Guarantor agrees that it will not raise or claim any such immunity at or in
respect of any such action or proceeding.
19. Severability; Modification to Conform to Law.
(a) It is the intention of the parties that this Guaranty be enforceable to the
fullest extent permissible under applicable law, but that the unenforceability
(or modification to conform to such law) of any provision or provisions hereof
shall not render unenforceable, or impair, the remainder hereof. If any
provision in this Guaranty shall be held invalid or unenforceable in whole or in
part in any jurisdiction, this Guaranty shall, as to such jurisdiction, be
deemed amended to modify or delete, as necessary, the offending provision or
provisions and to alter the bounds thereof in order to render it or them valid
and enforceable to the maximum extent permitted by applicable law, without in
any matter affecting the
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validity or enforceability of such provision or provisions in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
(b) Without limitation of the preceding subsection (a), to the extent that
applicable law (including applicable laws pertaining to fraudulent conveyance or
fraudulent or preferential transfer) otherwise would render the full amount of
Guarantor's obligations hereunder invalid, voidable, or unenforceable on account
of the amount of Guarantor's aggregate liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
aggregate amount of Guarantor's liability shall, without any further action by
the Agent or any of the Banks or Guarantor or any other Person, be automatically
limited and reduced to the highest amount which is valid and enforceable as
determined in such action or proceeding.
(c) Notwithstanding anything to the contrary in this Section or elsewhere in
this Guaranty, this Guaranty shall be presumptively valid and enforceable to its
full extent in accordance with its terms, as if this Section (and references
elsewhere in this Guaranty to enforceability to the fullest extent permitted by
Law) were not a part of this Guaranty, and in any related litigation the burden
of proof shall be on the party asserting the invalidity or unenforceability of
any provision hereof or asserting any limitation on Guarantor's obligations
hereunder as to each element of such assertion.
20. Receipt of Credit Agreement, Other Loan Documents, Benefits.
(a) Guarantor hereby acknowledges that it has received a copy of the Credit
Agreement and the other Loan Documents and Guarantor certifies that the
representations and warranties made therein with respect to Guarantor are true
and correct. Further, Guarantor acknowledges and agrees to perform, comply with,
and be bound by all of the provisions of the Credit Agreement and the other Loan
Documents applicable to it.
(b) Guarantor hereby acknowledges, represents, and warrants that it is the
indirect owner of the Borrower and that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreement
and that such benefits, together with the rights of contribution, indemnity, and
subrogation that may arise in connection herewith, are a reasonably equivalent
exchange of value in return for providing this Guaranty.
21. Miscellaneous.
(a) Generality of Certain Terms. As used in this Guaranty, the terms "hereof,"
"herein," and terms of similar import refer to this Guaranty as a whole and not
to any particular term or provision; the term "including," as used herein, is
not a term of limitation and means "including without limitation."
(b) Amendments, Waivers. No amendment to or waiver of any provision of this
Guaranty, and no consent to any departure by Guarantor herefrom, shall in any
event be effective unless in a writing manually signed by or on behalf of the
Agent and the Required Banks (unless the Credit Agreement requires the consent
of all Banks) and, in the case of an amendment, Guarantor. Any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No delay or failure of the Agent or the Banks, or any
of them, in exercising any right or remedy under this Guaranty shall operate as
a waiver thereof; nor shall any single or partial exercise of any such right or
remedy preclude any other or further exercise thereof or the exercise of any
other right or remedy. The rights and remedies of the Agent and the Banks under
this Guaranty are cumulative and not exclusive of any other rights or remedies
available hereunder, under any other agreement or instrument, by Law, or
otherwise.
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(c) Expenses. Guarantor unconditionally agrees to pay all reasonable costs and
expenses, including reasonable attorney's fees incurred by the Agent or any of
the Banks in enforcing this Guaranty against Guarantor and Guarantor shall pay
and indemnify each Bank and the Agent for, and hold it harmless from and
against, any and all obligations, liabilities, losses, damages, costs, expenses
(including disbursements and reasonable legal fees of counsel to any Bank or the
Agent), penalties, judgments, suits, actions, claims, and disbursements imposed
on, asserted against, or incurred by any Bank or the Agent (A) relating to the
enforcement of or collection under this Guaranty or any document, instrument, or
agreement relating to this Guaranty, including in any bankruptcy, insolvency, or
similar proceeding in any jurisdiction or political subdivision thereof; (B)
relating to any amendment, modification, waiver, or consent hereunder or
relating to any telecopy or telephonic transmission relating hereto purporting
to be by Guarantor or Borrower; (C) in any way relating to or arising out of
this Guaranty, or any document, instrument, or agreement relating to this
Guaranty, and including those arising directly or indirectly from the violation
or asserted violation of any Law (including those relating to environmental
protection, health, labor, importing, exporting, or safety) and regardless
whether asserted by any governmental entity or any other Person; provided,
however, that Guarantor shall not be obligated to indemnify or hold harmless any
Bank or the Agent to the extent that any such obligation, liability, loss,
damage, cost, expense, penalty, judgment, suit, actions, claim, or disbursement
of such Bank or the Agent arose from the gross negligence or willful misconduct
of such Bank or the Agent.
(d) Prior Understandings. This Guaranty and the Credit Agreement and the other
Loan Documents constitute the entire agreement of the parties hereto with
respect to the subject matter hereof and supersede any and all other prior and
contemporaneous understandings and agreements.
(e) Survival. All representations and warranties of Guarantor made in connection
with this Guaranty shall survive, and shall not be waived by, the execution and
delivery of this Guaranty, any investigation by or knowledge of the Agent and
the Banks, or any of them, any extension of credit, or any other event or
circumstance whatsoever.
[SIGNATURE PAGE FOLLOWS]
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[SIGNATURE PAGE OF CONTINUING AGREEMENT OF GUARANTY]
IN WITNESS WHEREOF, Guarantor intending to be legally bound, has
executed this Guaranty as of the date first above written with the intention
that this Guaranty shall constitute a sealed instrument.
ACE LIMITED
The Common Seal of ACE Limited was
hereunto affixed in the presence of:
By:____________________________________(SEAL)
Name:
Title: General Counsel and Secretary
By:____________________________________(SEAL)
Name:
Title: Chief Financial Officer
