SENIOR DEBT SECURITIES GUARANTEE AGREEMENT BETWEEN PARTNERRE LTD. (AS GUARANTOR) AND THE BANK OF NEW YORK MELLON (AS GUARANTEE TRUSTEE) DATED AS OF March 15, 2010
Exhibit
4.3
EXECUTION
COPY
SENIOR DEBT SECURITIES GUARANTEE
AGREEMENT
BETWEEN
(AS GUARANTOR)
AND
THE BANK OF NEW YORK MELLON
(AS GUARANTEE
TRUSTEE)
DATED AS OF
March 15, 2010
TABLE OF CONTENTS
Page
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ARTICLE
1
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Definitions
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Section 1.01.
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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.
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Trust Indenture Act:
Application.
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3
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Section 2.02.
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List of
Holders.
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3
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Section 2.03.
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Reports by the
Guarantee Trustee..
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4
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Section 2.04.
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Periodic Reports to the Guarantee
Trustee.
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4
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Section 2.05.
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Evidence of Compliance with
Conditions Precedent.
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4
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Section 2.06.
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Events of Default;
Waiver.
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4
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Section 2.07.
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Event of Default;
Notice.
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5
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Section 2.08.
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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.
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Powers, and Duties of the
Guarantee Trustee.
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5
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Section 3.02.
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Certain Rights of the Guarantee
Trustee.
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7
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Section 3.03.
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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.
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Guarantee Trustee;
Eligibility.
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10
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Section 4.02.
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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.
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Guarantee..
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11
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Section 5.02.
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Waiver of Notice and
Demand.
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11
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Section 5.03.
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Obligations Not
Affected.
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11
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Section 5.04.
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Rights of
Holders
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11
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Section 5.05.
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Guarantee of
Payment..
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12
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Section 5.06.
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Subrogation.
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13
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Section 5.07.
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Independent
Obligations.
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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.
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Limitation of
Transactions.
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13
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Section 6.02.
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Ranking..
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14
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Section 6.03.
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Pari Passu
Guarantees..
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14
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ARTICLE
7
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Termination
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Section 7.01.
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Termination.
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14
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ii
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ARTICLE
8
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Miscellaneous
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Section 8.01.
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Successors and
Assigns..
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14
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Section 8.02.
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Amendments.
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15
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Section 8.03.
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Notices.
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15
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Section 8.04.
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Benefit..
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16
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Section 8.05.
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Governing
Law.
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16
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Section 8.06.
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Interpretation.
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16
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Section 8.07.
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Submission to
Jurisdiction
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17
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Section 8.08.
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Judgment
Currency.
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18
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Section 8.09.
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Waiver of Jury
Trial..
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18
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Section 8.10.
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Force
Majeure.
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19
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iii
SENIOR DEBT SECURITIES GUARANTEE AGREEMENT
This SENIOR DEBT SECURITIES GUARANTEE AGREEMENT (this “Guarantee
Agreement” or this “Guarantee”), dated as of March 15, 2010, 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
Mellon, 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
B LLC, a Delaware limited liability company (the “Issuer”).
WHEREAS, pursuant to a Senior Indenture, dated as of March 15, 2010 (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
Dfinitions
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 by the terms of the Notes, under circumstances specified
in the terms of such
Notes, 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, a Vice
Chairman, the President, a Vice President, the Chief Financial Officer, the
Treasurer, an Assistant Treasurer, the Chief Investment Officer, the Chief Operations
Officer, the Chief Accounting Officer, the General 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 Mellon, 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(i).
“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 within the corporate trust department of the Guarantee
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the Guarantee
Trustee who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Guarantee Agreement.
“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.
(i) 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.
(ii) 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.
(i) 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
3
information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its capacity as such.
The Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(ii) 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 March 15 of each year commencing with
March 15, 2011, 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. Delivery of such documents,
reports and information to the Guarantee Trustee is for information purposes
only, and the Guarantee
Trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from
information contained therein, including the Guarantor’s compliance with any of its covenants
hereunder (as to which the Guarantee Trustee is entitled to
conclusively rely exclusively on an Officers’ Certificate).
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.
4
Section 2.07. Event of Default;
Notice.
(i) 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 Guarantee Trustee in good faith determines that the withholding of such notice is in
the interests of the Holders.
(ii) The Guarantee Trustee shall not be
deemed to have knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice and such notice references this
Guarantee or the
Indenture, or a Responsible
Officer of the Guarantee Trustee shall have actual knowledge or shall have
obtained written notice and
such notice references this Guarantee or the Indenture, 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.
(i) 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(iv) or to a
Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of
its appointment to act as Successor Guarantee Trustee. The right, title and
interest of the Guarantee Trustee shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee
of its appointment hereunder, and such vesting and cessation of title shall be
effective whether or not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(ii) 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.
5
(iii) 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 prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(iv) 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 action taken
or omitted to be taken or
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 or engaged in willful
misconduct;
(iii) the Guarantee Trustee shall not be
liable (including,
without limitation, for
consequential loss or
damages) with respect to any
6
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;
(iv) no provision of this Guarantee shall
require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such
funds or liability is not reasonably assured to it under
the terms of this Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it; and
(v) the Guarantee Trustee may
request that the Guarantor
deliver a certificate and/or Board Resolutions, as the Guarantor deems
appropriate, setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this
Guarantee.
Section 3.02. Certain Rights of the Guarantee
Trustee.
(i) 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 of
its selection, and the
written advice or opinion of such counsel
7
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
satisfactory to the Guarantee Trustee in its reasonable judgment, against the costs, expenses (including
reasonable attorneys’ fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable
advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in
this Section 3.02(i)(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.
8
(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
(C) shall be protected in acting in
accordance with such instructions.
In no event shall the Trustee be
responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the
Trustee has been advised of the likelihood of such loss or damage and regardless
of the form of action.
(ii) 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, claim, damage, liability or expense incurred, 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, except to the extent that any such loss, claim, damage,
liability or expense shall be determined to have been caused by the Guarantee Trustee’s negligence or willful misconduct. 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.
9
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.
(i) 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(i)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(ii) If at any time the Guarantee Trustee
shall cease to be eligible to so act under Section 4.01(i), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.02(iii).
(iii) 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 .
(i) Subject to Section
4.02(ii), the Guarantee
Trustee may be appointed or removed without cause at any time by the
Guarantor.
(ii) The Guarantee Trustee shall not be removed in
accordance with Section
4.02(i) 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.
(iii) 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
10
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.
(iv) If no Successor Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section
4.02 within
90 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
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:
(i) the release or waiver, by operation of
law or otherwise, of the performance or observance by the Issuer of any express
or implied agreement,
11
covenant, term or condition relating to the Notes to be performed or observed by the
Issuer;
(ii) 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;
(iii) 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;
(iv) any invalidity or unenforceability of,
or defect or deficiency in, the Notes; or
(v) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.03 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: (i) this Guarantee Agreement will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to
enforce this Guarantee
Agreement on behalf of
the Holders;
(iii) the holders of 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 (iv) any Holder may, to the extent permitted
by law, institute a legal proceeding directly against the Guarantor to enforce
its rights under this
Guarantee Agreement,
without first instituting a legal proceeding against the Guarantee Trustee, the
Issuer or any other Person. The Guarantor waives any right or remedy to require
that any action on
this Guarantee
Agreement be brought first
against the Issuer or any other Person or entity before proceeding directly
against the Guarantor.
Section 5.05. 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.
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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.
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 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
13
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 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
14
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 Section 5.01 and Section
6.01 hereof, which may
only be amended in writing with the prior approval of each Holder of the Notes then
outstanding, 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:
(i) 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 Mellon
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
(ii) 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):
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: Chief Legal Counsel
with a copy to:
Xxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
15
(iii) 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 B 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 Mellon
000 Xxxxxxx Xxxxxx
Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust
Administration
(iv) 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.
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:
(i) 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;
16
(ii) a term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(iii) all references to “the
Agreement” or “this Guarantee
Agreement” are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(iv) all references in this Guarantee Agreement to Articles and Sections are to
Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(v) 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;
(vi) a reference to the singular includes the
plural and vice versa; and
(vii) 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 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
LLP, 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,
17
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 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.
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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.
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THIS GUARANTEE AGREEMENT is executed as
of the day and year first above written.
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as Guarantor
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By:
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/s/ Xxxxxxx Xxxxxxx | |
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Name: Xxxxxxx
Xxxxxxx
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Title: Group Finance
Director
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THE BANK OF NEW YORK MELLON,
as Guarantee Trustee
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By:
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/s/ Xxxxxx X. Xxxxxx | |
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Name: Xxxxxx X.
Xxxxxx
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Title: Vice
President
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