EXHIBIT 10.1
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GUARANTY
Dated as of June 23, 1997
among
RENAISSANCERE HOLDINGS LTD.,
as Guarantor,
and
BANK OF AMERICA NATIONAL ILLINOIS
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GUARANTY
THIS GUARANTY (this "Guaranty") is entered into as of June 23, 1997 between
RENAISSANCERE HOLDINGS LTD., a Bermuda company ("Guarantor"), in favor of BANK
OF AMERICA ILLINOIS (the "Bank"). Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to such terms pursuant to
Article I.
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W I T N E S S E T H:
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WHEREAS, pursuant to a Credit Agreement, dated as of June 23, 1997 (as from
time to time, in whole or in part, the same may be amended, modified,
supplemented, restated, refinanced, refunded or renewed, the "Credit
Agreement"), among the individuals listed as borrowers on the signature pages
thereto (herein, collectively called, the "Borrowers" and each individually, a
"Borrower") and the Bank, the Bank has extended a Commitment to make Loans to
each of the Borrowers on the terms and subject to the conditions contained in
the Credit Agreement;
WHEREAS, as a condition precedent to the making of the initial Loans and
any subsequent Loans under the Credit Agreement, the Bank has requested that
Guarantor execute and deliver this Guaranty;
WHEREAS, Guarantor has been duly authorized to execute, deliver and perform
this Guaranty; and
WHEREAS, it is in the best interest of Guarantor to execute this Guaranty
inasmuch as Guarantor will derive substantial direct and indirect benefits from
the Loans made from time to time to the Borrowers or any of them by the Bank
pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, and in order to induce the Bank to
make Loans (as defined in the Credit Agreement) (including the initial Loans) to
the Borrowers or any of them pursuant to the Credit Agreement, Guarantor agrees,
for the benefit of the Bank and any holder of any Loan (individually a
"Guarantied Party" and collectively the "Guarantied Parties"), as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.1. Certain Terms. Capitalized terms used herein, unless
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otherwise defined herein, shall have the meanings assigned thereto in the Credit
Agreement; provided that such definitions shall survive any termination of the
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Credit Agreement. In addition, when used herein the following terms
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Bank" - see Preamble.
"Borrowers" or "Borrower" - see Recitals.
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"Cash Collateral Account" shall mean the custody account, account number
72-81129 maintained in the name of, and subject to the sole dominion and control
of the Bank for the purpose of holding prepayments of the Obligations of the
Borrowers by the Guarantor pursuant to Section 6.1.
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"Credit Agreement" - see Recitals.
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"Guarantied Party" - see Preamble.
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"Guaranty" - see Preamble.
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"Indemnified Parties" - see Section 6.2.
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"Obligations" - see Section 2.1.
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"Subrogation Rights" - see Section 5.6.
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"UCC" shall mean the Uniform Commercial Code or comparable statute or any
successor statutes thereto, as in effect from time to time in the relevant
jurisdiction.
ARTICLE II.
GUARANTY PROVISIONS
SECTION 2.1. Guaranty. Guarantor hereby absolutely, unconditionally and
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irrevocably:
(a) guaranties to the Guarantied Parties the full and punctual payment
when due, whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, and at all times thereafter, of all
obligations of each Borrower to the Guarantied Parties, howsoever created,
arising or evidenced, whether direct or indirect, absolute or contingent, or now
or hereafter existing, or due or to become due under the Credit Agreement
whether for principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic stay
provisions under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
(S)362(a), and the operation of Sections 502(b) and 506(b) of the United States
Bankruptcy Code, 11 U.S.C. (S)502(b) and (S)506(b)) (all such obligations
hereinafter collectively called the "Obligations"); and
(b) indemnifies and holds harmless each Guarantied Party for any and all
costs and expenses (including, without
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limitation, reasonable attorneys' fees and expenses) incurred by such Guarantied
Party in enforcing any rights under this Guaranty;
This Guaranty constitutes a guaranty of payment when due and not of collection,
and Guarantor specifically agrees that except as provided in Article V it shall
not be necessary or required that any Guarantied Party exercise any right,
assert any claim or demand or enforce any remedy whatsoever against any
Borrower or any other obligor (or any other Person) before the performance of,
or as a condition to, the obligations of Guarantor hereunder.
SECTION 2.2. Acceleration of Guaranty. Guarantor agrees that, upon the
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occurrence of an Event of Default under Section 10.1.2 of the Credit Agreement
with respect to any Borrower or Guarantor, if such event shall occur at a time
when any of the Obligations of such Borrower may not then be due and payable,
Guarantor will pay to the Banks forthwith (a) if such event relates to such
Borrower, the full amount which would be payable hereunder by Guarantor if all
Obligations of such Borrower were then due and payable and (b) if such event
relates to Guarantor or any other obligor with respect to the obligations of
Guarantor, the full amount which would be payable hereunder by Guarantor if all
the Obligations of all Borrowers were then due and payable.
SECTION 2.3. Guaranty Absolute, etc. This Guaranty shall in all respects
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be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the Borrowers
have been paid in full, all obligations of Guarantor hereunder shall have been
paid in full and all Commitments shall have terminated. Guarantor guarantees
that the Obligations of the Borrowers will be paid strictly in accordance with
the terms of the Credit Agreement and each other Loan Document under which they
arise, regardless of any law, regulation or order now or hereafter in effect in
any jurisdiction affecting any of such terms or the rights of any Guarantied
Party with respect thereto. The liability of Guarantor under this Guaranty
shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Note or any other Loan Document;
(b) the failure of any Guarantied Party:
(i) to assert any claim or demand or to enforce any right or remedy
against any Borrower, any other obligor or any other Person under the
provisions of the Credit Agreement, any Note, any other Loan Document or
otherwise; or
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(ii) to exercise any right or remedy against any other guarantor of,
or collateral securing, any Obligations of any Borrower or any other
obligor;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of any Borrower or any other
obligor, or any other extension, compromise or renewal of any Obligations of any
Borrower or any other obligor;
(d) any reduction, limitation, impairment or termination of the
Obligations of any Borrower or any other obligor for any reason, including any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to (and Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting, the Obligations
of any Borrower, any other obligor or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to any departure from, any of the terms of the Credit Agreement, any
Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to any departure from, any other guaranty, held by any Guarantied Party
securing any of the Obligations of any Borrower or any other obligor; or
(g) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Borrower, any other
obligor, any surety or any guarantor other than payment in full of the
Obligations.
SECTION 2.4. Reinstatement, etc. Guarantor agrees that this Guaranty
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shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by any Guarantied Party, upon the insolvency,
bankruptcy or reorganization of any Borrower, any other obligor or otherwise,
all as though such payment had not been made.
SECTION 2.5. Waiver, etc. Guarantor hereby waives promptness, diligence,
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notice of acceptance and any other notice with respect to any of the Obligations
of any Borrower or any other obligor, and this Guaranty and any requirement that
the Bank or any other Guarantied Party protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any right
or take any action against any Borrower, any other obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
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Obligations of any Borrower or any other obligor, as the case may be.
SECTION 2.6 Waiver of Subrogation; Subordination. Guarantor hereby
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irrevocably waives with respect to any Borrower, until termination of the
Commitment of the Bank with respect to such Borrower and thereafter until the
prior indefeasible payment in full in cash of all Obligations of such Borrower
under the Loan Documents, any claim or other rights which it may now or
hereafter acquire against such Borrower or any other obligor that arises from
the existence, payment, performance or enforcement of Guarantor's obligations
under this Guaranty or any other Loan Document or otherwise, including any right
of subrogation, reimbursement, exoneration, or indemnification, any right to
participate in any claim or remedy of the Guarantied Parties against such
Borrower or any other obligor or any collateral which the Bank now has or
hereafter acquires, whether or not such claim, remedy or right (all such claims,
remedies and rights being collectively called "Subrogation Rights") arises in
equity, or under contract, statute or common law, including the right to take or
receive from such Borrower or any other obligor, directly or indirectly, in cash
or other property or by set-off or in any manner, payment or security on account
of such claim or other rights. If any amount shall be paid to Guarantor in
violation of the preceding sentence and the Obligations shall not have been paid
in cash, in full, and the Commitments of the Banks with respect to such Borrower
have not been terminated, such amount shall be deemed to have been paid to
Guarantor for the benefit of, and held in trust for, the Guarantied Parties, and
shall forthwith be paid to the Guarantied Parties to be credited and applied
upon the obligations of such Borrower, whether matured or unmatured. Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated by the Credit Agreement and that the waiver
set forth in this Section is knowingly made in contemplation of such benefits.
SECTION 2.7. Successors, Transferees and Assigns; Transfers of Notes, etc.
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This Guaranty shall:
(a) be binding upon Guarantor, and its successors, transferees
and assigns; and
(b) inure to the benefit of and be enforceable by the Bank and
each other Guarantied Party.
Without limiting the generality of clause (b), the Bank may assign or otherwise
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transfer (in whole or in part) any Note or Loan held by it to any other Person,
and such other Person shall thereupon become vested with all rights and benefits
in respect thereof granted to such Bank under any Loan Document (including this
Guaranty) or otherwise. Notwithstanding anything contained in this Section 2.7
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to the contrary, this Section 2.7 shall not be deemed to enlarge or create
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additional rights with respect to
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the Bank's ability to assign its Loans or rights under any Note or any other
Loan Document pursuant to Section 11 of the Credit Agreement, and this Section
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2.7 is expressly made subject thereto.
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SECTION 2.8. Payments Free and Clear of Taxes, etc. Guarantor hereby
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agrees that:
(a) any and all payments made by such Guarantor hereunder shall be
made in accordance with Section 4.7 of the Credit Agreement free and clear of,
and without deduction for, any and all Taxes, to the same extent as if Guarantor
were a Borrower.
(b) Guarantor hereby indemnifies and holds harmless each Guarantied
Party for the full amount of any Taxes paid by such Guarantied Party in
connection with any payments under this Guaranty and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes were correctly or legally asserted.
(c) Without prejudice to the survival of any other agreement of
Guarantor hereunder, the agreements and obligations of Guarantor contained in
this Section 2.8 shall survive the payment in full of the principal of and
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interest on the Loans.
SECTION 2.9. Right of Offset. In addition to and not in limitation of all
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rights of offset that any Guarantied Party may have under applicable law or any
other Loan Document, subject to the terms of the Credit Agreement, each
Guarantied Party shall upon the occurrence of any Event of Default with respect
to the Guarantor and whether or not such Guarantied Party has made any demand or
Guarantor's obligations are matured, have the right to appropriate and apply to
the payment of Guarantor's obligations hereunder all deposits (general or
special, time or demand, provisional or final) then or thereafter held by, and
other indebtedness or property then or thereafter owing to, such Guarantied
Party whether or not related to this Guaranty or any transaction hereunder.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; INCORPORATION BY REFERENCE
To induce the Bank to enter into the Credit Agreement and to make the Loans
thereunder, Guarantor represents and warrants to the Bank that:
SECTION 3.1. Organization, etc. Guarantor and each of its Subsidiaries is
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a company duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or formation and each of Guarantor and
its Subsidiaries is duly qualified to transact business and in good standing as
a foreign corporation, authorized to do business in each jurisdiction where the
nature of its business makes such
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qualification necessary except where the failure to so qualify could reasonably
be expected to have a Material Adverse Effect.
SECTION 3.2. Authorization. The Guarantor (a) has the power to execute,
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deliver and perform this Guaranty, and (b) has taken all necessary action to
authorize the execution, delivery and performance by it of this Guaranty and the
other Loan Documents to which it is a party.
SECTION 3.3. No Conflict. The execution, delivery and performance by
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Guarantor of this Guaranty does not and will not (a) contravene or conflict with
any provision of any law, statute, rule or regulation, (b) contravene or
conflict with, result in any breach of, or constitute a default under, any
material agreement or instrument binding on Guarantor or any of its Subsidiaries
(including, without limitation, any writ, judgment, injunction or other similar
court order), (c) result in the creation or imposition of or the obligation to
create or impose any Lien upon any of the property or assets of the Guarantor or
any of its Subsidiaries or (d) contravene or conflict with any provision of the
memorandum of incorporation or bye-laws of Guarantor.
SECTION 3.4. Margin Regulations.
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(a) None of the transactions contemplated hereunder or in connection
herewith will in any way contravene or conflict with any of the provisions of
Regulation G or Regulation U;
(b) None of the obligations of any Borrower to the Guarantor is or
will be directly or indirectly secured by "margin stock" (as defined in
Regulation G and Regulation U);
(c) The Guarantor does not and will not have any right to prohibit any
Borrower from selling, pledging, encumbering or otherwise disposing of any
margin stock owned by such Borrower so long as this Guaranty is in effect or any
of the Obligations of the Borrowers or the obligations of the Guarantor under
the Loan Documents remain outstanding;
(d) None of the Borrowers have granted or will grant the Guarantor or
any third party acting on behalf of the Guarantor the right to accelerate
repayment of any of the Obligations of such Borrower if any of the margin stock
owned by such Borrower is sold by such Borrower or otherwise; and
SECTION 3.5. Incorporation by Reference. Guarantor agrees that the
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representations and warranties of Guarantor set forth in Section 4 of the
Revolving Credit Agreement (other than Sections 4.2, 4.3 and 4.8,) shall be
incorporated by reference in this Guaranty in their entirety as if fully set
forth herein with the same effect as if applied to this Guaranty. All
capitalized terms set forth in such Sections shall have the meanings provided in
the Revolving Credit Agreement; provided that for purposes of
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this Guaranty, to the extent set forth in the Revolving Credit Agreement (a) the
term "Borrower" shall be deemed to refer to Guarantor and (b) the terms "Agent",
"Lenders", and "Required Lenders" shall be deemed to refer to the Bank. Such
representations and warranties shall not be affected in any manner by the
termination of the Revolving Credit Agreement.
ARTICLE IV.
COVENANTS
SECTION 4.1. Guarantor agrees that, on and after the Closing Date until
the termination or expiration of the Commitments and for so long thereafter as
any of the Obligations or the obligations of Guarantor hereunder remain unpaid
or outstanding (except Obligations which by the terms hereof survive the payment
in full of the Loans and termination of this Guaranty), the Guarantor will
comply with the covenants set forth in Sections 5 and 6 of the Revolving Credit
Agreement and the terms and provisions set forth therein shall be incorporated
by reference in this Guaranty in their entirety as if fully set forth herein
with the same effect as if applied to this Guaranty. All capitalized terms set
forth in Sections 5 and 6 of the Revolving Credit Agreement shall have the
meanings provided in the Revolving Credit Agreement; provided that for purposes
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of this Guaranty, to the extent set forth in the Revolving Credit Agreement (a)
the term "Borrower" shall be deemed to refer to Guarantor and (b) the terms
"Agent", "Lenders", and "Required Lenders", shall be deemed to refer to the
Bank. Such covenants shall not be affected in any manner by any amendment or
modification of or the termination of the Revolving Credit Agreement.
SECTION 4.2. Certain Indebtedness. Guarantor shall not, and shall not
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permit any of its Insurance Subsidiaries to amend or modify any provision of the
Revolving Credit Agreement if such amendment or modification could have an
adverse effect on the Bank or any material provision of the Loan Documents.
SECTION 4.3. Margin Regulations. Guarantor shall take such actions from
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time to time as the Bank shall reasonably request to maintain continuous
compliance with Regulation G and U.
ARTICLE V.
SALE AND RELEASE OF PLEDGED SHARES; CASH COLLATERAL
SECTION 5.1. Sale of Pledged Shares. Notwithstanding any provision set
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forth herein or in any of the Loan Documents to the contrary, the Bank agrees
that (a) after the occurrence and during the continuance of a Default under
Section 10.1.2 of the Credit Agreement (it being understood that upon the
occurrence of an Event of Default under Section 10.1.2 of the Credit Agreement
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with respect to any Borrower, the provisions of Section 2.2(a) shall be
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applicable) or Section 10.1.7 of the Credit Agreement or (b) after the
occurrence and during the continuation of any Event of Default (other than an
Event of Default under Section 10.1.2 of the Credit Agreement) with respect to
any Borrower the effect of which is to cause the Obligations of such Borrower to
be due and payable under the Credit Agreement (a "Borrower Default"), subject to
the provisions of Section 5.2 and 5.4 below, it will not demand that the
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Guarantor pay the Obligations of such Borrower (constituting outstanding
principal and interest of such Borrower), until after the Bank has used its
reasonable efforts, in good faith, to sell the Pledged Shares of such Borrower,
such sale to be consummated in one or a series of open market transactions
through one or more reputable broker-dealers at the then fair market value of
such Pledged Shares.
SECTION 5.2. Conditions. The obligation of the Bank not to demand payment
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hereunder pursuant to Section 5.1 is subject to the following conditions:
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(a) the Guarantor, within five (5) Business Days after receipt of
written notice of a Borrower Default from the Bank, shall deposit with the Bank
in the Cash Collateral Account an amount equal to the then outstanding
Obligations of the Borrower related to such Borrower Default and, thereafter,
upon written notice from the Bank, the Guarantor continues to deposit funds in
the Cash Collateral Account in sufficient amounts to pay in full any additional
interest accrued on the Loans of such Borrower after the date of the initial
deposit to the Cash Collateral Account; and
(b) none of the following has occurred at the time of such Borrower
Default or shall occur thereafter:
(i) a suspension or material limitation in trading in securities
generally or trading in the common shares of the Guarantor on the New York
Stock Exchange or such other U.S. exchange or quotation system on which
such shares may be primarily listed;
(ii) a general moratorium on commercial banking activities in New
York is declared by any Federal or New York State authorities;
(iii) the Bank is prohibited or materially limited from selling
the Pledged Shares as a result of any Federal or state securities laws
(including, without limitation, the rules promulgated thereunder relating
to the disclosure of material information);
(iv) the sale of the Pledged Shares shall require the approval of
the Bermuda Monetary Authority or any other Governmental Authority;
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(v) any other event (including, without limitation, commencement
of any suit, action or litigation, filing of any claim or any other similar
proceeding or any change in any applicable law) has occurred which, in the
reasonable opinion of the Bank, would prohibit, have a material adverse
effect on, or materially limit the Bank's ability to sell the Pledged
Shares as contemplated by the terms of Section 6.1; or
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(vi) an Event of Default under the Credit Agreement affecting the
Guarantor or any Insurance Subsidiary has occurred and is continuing.
The Guarantor agrees that in any sale of any of the Pledged Shares, the
Bank is authorized to comply with any limitation or restriction in connection
with such sale as counsel may advise the Bank is necessary, in the reasonable
opinion of such counsel, in order to avoid any violation of applicable law
(including, without limitation, compliance with such procedures as may restrict
the number of prospective bidders and purchasers, require that such prospective
bidders and purchasers have certain qualifications, and restrict such
prospective bidders and purchasers to persons who will represent and agree that
they are purchasing for their own account for investment and not with a view to
the distribution or resale of such Collateral), or in order to obtain any
required approval of the sale or of the purchaser by any governmental regulatory
authority or official, and the Guarantor further agrees that such compliance
shall not result in such sale being considered or deemed not to have been made
in a commercially reasonable manner, nor shall the Bank be liable or accountable
to the Guarantor for any discount allowed by reason of the fact that such
Pledged Shares are sold in compliance with any such limitation or restriction.
The Guarantor further agrees to indemnify and hold harmless the Bank, its
officers, directors, employees, agents, successors and assigns, and any Person
in control of any thereof, from and against any loss, liability, claim, damage
and expense, including, without limitation, reasonable attorneys' fees actually
incurred (in this paragraph collectively called the "Indemnified Liabilities"),
under federal and state securities laws or otherwise resulting from the action
or failure to act by the Guarantor or any Borrower.
SECTION 5.3. Release of Pledged Shares. The Bank agrees that, except as
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provided in Section 5.4 of the Credit Agreement, so long as the Guarantor is in
compliance with Section 5.2(a) and none of the events set forth in Section
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5.2(b) has occurred, it shall not release any of the Pledged Shares of any
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Borrower from the Lien granted under the Pledge Agreement until after the
termination of this Guaranty and the obligations of the Guarantor hereunder with
respect to such Borrower. Notwithstanding the foregoing, the Bank shall be
entitled to release the Pledged
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Shares of such Borrower if such Pledged Shares are replaced by additional common
shares of the Guarantor.
SECTION 5.4. Borrower Event of Default. The Guarantor hereby acknowledges
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and agrees that Sections 5.1 and 5.3 shall not apply to any Default or Event of
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Default relating to the Guarantor or any of its Insurance Subsidiaries and, upon
the occurrence of an Event of Default relating to the Guarantor or any of its
Insurance Subsidiaries, the Bank expressly reserves its rights and remedies
under this Guaranty to demand payment hereunder to satisfy the Obligations of
all Borrowers and the obligations of Guarantor hereunder whether or not the Bank
has sold or attempted to sell the Pledged Shares of any Borrower or otherwise
exercised its rights and remedies under the Pledge Agreement.
SECTION 5.5. Application of Cash Collateral. If after compliance by the
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Bank with the provisions set forth in Section 5.1 any Obligations remain unpaid
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with respect to any applicable Borrower, any funds held in the Cash Collateral
Account may be applied by the Bank against the payment of the Obligations of
such Borrower. The Bank, prior to applying such funds against the Obligations of
such Borrower, will certify to the Guarantor (a) if the Pledged Shares of such
Borrower are sold pursuant to Section 5.1, the net proceeds (including a
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calculation thereof in reasonable detail) received by the Bank from the sale of
such Pledged Shares and (b) if the Pledged Shares of such Borrower are not sold
pursuant to Section 5.1, the reason or reasons why such sale could not be
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accomplished. Any funds remaining in the Cash Collateral Account after
application thereof to the Obligations as set forth above shall be returned to
the Guarantor. The Bank agrees that it shall deliver to the Guarantor, after
the application of such funds to the Obligations of such Borrower, a calculation
in reasonable detail of the Obligations of such Borrower (including principal
and interest of the Loans of such Borrower) and the application of such funds
thereto.
ARTICLE VI.
MISCELLANEOUS
SECTION 6.1. The Guarantor agrees to pay on demand all reasonable expenses
of the Bank (including the non-duplicative fees and reasonable expenses of
counsel (including allocated costs and expenses of in-house counsel) and of
local counsel, if any, who may be retained by such counsel) in connection with:
(a) the negotiation, preparation, execution and delivery of the Credit
Agreement, this Guaranty and the other Loan Documents, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to the Credit Agreement, this Guaranty or the other Loan Documents
as may from time to time hereafter be required, whether or not the transactions
contemplated hereby or thereby are consummated; and
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(b) the preparation and/or review of the form of any document or
instrument relevant to the Credit Agreement, this Guaranty or any other Loan
Document.
The Guarantor further agrees to pay, and to save the Bank harmless from all
liability for, any stamp or other Taxes (other than income taxes of the Bank)
which may be payable in connection with the execution or delivery of the Credit
Agreement, any Borrowing thereunder, the issuance of the Notes, this Guaranty or
any other Loan Document. The Guarantor also agrees to reimburse the Bank upon
demand for all reasonable expenses (including attorneys' fees and legal
expenses) incurred by the Bank in connection with the enforcement of any
Obligations or obligations hereunder and the consideration of legal issues
relevant hereto and thereto. All obligations of the Guarantor provided for in
this Section 6.1 shall survive termination of this Agreement. Notwithstanding
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the foregoing, the Bank shall not have the right to reimbursement under this
Section 6.1 for amounts determined by a court of competent jurisdiction to have
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arisen from the gross negligence or willful misconduct of the Bank.
SECTION 6.2. The Guarantor agrees to indemnify the Bank and the Bank's
directors, officers, employees, persons controlling or controlled by any of them
or their respective agents, consultants, attorneys and advisors (the
"Indemnified Parties") and hold each Indemnified Party harmless from and against
any and all liabilities, losses, claims, damages, costs and expenses of any kind
to which any of the Indemnified Parties may become subject, whether directly or
indirectly (including, without limitation, the reasonable fees and disbursements
of counsel for any Indemnified Party), relating to or arising out of the Credit
Agreement, this Guaranty, the other Loan Documents, or any actual or proposed
use of the proceeds of the Loans hereunder; provided, that no Indemnified Party
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shall have the right to be indemnified hereunder for its own gross negligence or
willful misconduct as determined by a court of competent jurisdiction. All
obligations of the Borrowers and the Guarantor provided for in this Section 6.2
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shall survive termination of the Credit Agreement and this Guaranty.
SECTION 6.3. All notices, requests and other communications to any party
hereunder shall be in writing (including facsimile) and shall be given to such
party at its address or facsimile number set forth on the signature page hereof
in the case of the Guarantor and on its signature page to the Credit Agreement
in the case of the Bank or such other address or facsimile or telex number as
such party may hereafter specify for the purpose by written notice to the Bank
or the Guarantor, as the case may be. Each such notice, request or other
communication shall be effective (a) if given by facsimile when such facsimile
is transmitted in legible form to the facsimile number specified in this
Section, receipt confirmed and (b) if given by overnight delivery, when
delivered for overnight (next day) delivery, addressed as specified in this
Section.
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SECTION 6.4. This Guaranty, and the terms, covenants and conditions
hereof, shall be binding upon and inure to the benefit of the parties hereto,
and their respective successors and assigns, except Guarantor shall not be
permitted to assign this Guaranty nor any interest herein nor in the Collateral,
nor any part thereof, nor otherwise pledge, encumber or grant any option with
respect to the Collateral, nor any part thereof, except in accordance with the
terms of the Credit Agreement.
SECTION 6.5. EACH OF GUARANTOR AND THE BANK (I) HEREBY IRREVOCABLY SUBMITS
TO THE NONEXCLUSIVE JURISDICTION OF ANY ILLINOIS STATE OR FEDERAL COURT SITTING
IN THE NORTHERN DISTRICT OF ILLINOIS OVER ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS GUARANTY OR THE OTHER LOAN DOCUMENTS, AND EACH OF
GUARANTOR AND THE BANK HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS STATE OR
FEDERAL COURT, AND (II) AGREES NOT TO INSTITUTE ANY LEGAL ACTION OR PROCEEDING
AGAINST THE OTHER PARTY HERETO OR THE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR
PROPERTY OF ANY THEREOF, ARISING OUT OF OR RELATING TO THIS GUARANTY, IN ANY
COURT OTHER THAN AS HEREINABOVE SPECIFIED IN THIS SECTION 6.5. EACH OF GUARANTOR
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AND THE BANK HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY ACTION
OR PROCEEDING (WHETHER BROUGHT BY GUARANTOR, ANY OF ITS SUBSIDIARIES, THE BANK
OR OTHERWISE) IN ANY COURT HEREINABOVE SPECIFIED IN THIS SECTION 6.5 AS WELL AS
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ANY RIGHT IT MAY NOW OR HEREAFTER HAVE TO REMOVE ANY SUCH ACTION OR PROCEEDING,
ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF FORUM NON CONVENIENS OR
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OTHERWISE.
SECTION 6.6. The provisions of this Guaranty may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to by Guarantor and by the Bank, and then any such
amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 6.7. The section headings in this Guaranty are inserted for
convenience of reference and shall not be considered a part of this Guaranty or
used in its interpretation.
SECTION 6.8. No action of the Bank permitted hereunder shall in any way
affect or impair the rights of the Bank and the obligations of Guarantor under
this Guaranty. Guarantor hereby acknowledges that there are no conditions to the
effectiveness of this Guaranty.
SECTION 6.9. All obligations of Guarantor and rights of the Bank or
obligation expressed in this Guaranty shall be in addition to and not in
limitation of those provided in applicable law or in any other written
instrument or agreement relating to any of the Obligations.
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SECTION 6.10. GOVERNING LAW. THIS GUARANTY SHALL BE A CONTRACT MADE UNDER
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AND GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES. ALL OBLIGATIONS OF THE BORROWERS AND THE GUARANTOR AND
RIGHTS OF THE BANK IN RESPECT OF THE OBLIGATIONS AND THE OBLIGATIONS OF THE
GUARANTOR EXPRESSED HEREIN OR IN THE OTHER LOAN DOCUMENTS SHALL BE IN ADDITION
TO AND NOT IN LIMITATION OF THOSE PROVIDED BY APPLICABLE LAW.
SECTION 6.11. This Guaranty may be executed in any number of counterparts,
each of which shall for all purposes be deemed an original, but all such
counterparts shall constitute but one and the same agreement. Guarantor hereby
acknowledges receipt of a true, correct and complete counterpart of this
Guaranty.
SECTION 6.12. The Bank acts herein as agent for itself and any and all
future holders of the Obligations.
SECTION 6.13. WAIVER OF JURY TRIAL. EACH OF GUARANTOR AND THE BANK HEREBY
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KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS
GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT DELIVERED
OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY
AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY; THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE PARTIES ENTERING INTO THIS GUARANTY.
SECTION 6.14. Nonrecourse Obligations. Guarantor acknowledges that it has
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reviewed Section 12.10 of the Credit Agreement, understands that the Borrowers
have no personal liability to the Bank for the Obligations and that the Bank's
sole recourse is to the Pledged Shares of such Borrower and under this Guaranty.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
and delivered by its officer thereunto duly authorized as of the date first
above written.
RENAISSANCERE HOLDINGS LTD.
By: /s/ Xxxx X. Xxxxxxx, Xx.
---------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
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Title: Vice President, Treasurer and
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Secretary
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Notice Address:
Xxxxxxxxxxx Xxxxx
0-00 X. Xxxxxxxx
Xxxxxxxx XX00, Xxxxxxx
Attention: Xxxxx X. Xxxxx,
Chief Financial Officer
Telephone: 000-000-0000
Facsimile: 000-000-0000
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