Exhibit 4.23
================================================================================
FORM OF
SENIOR DEBT SECURITIES GUARANTEE AGREEMENT
BETWEEN
PARTNERRE LTD.
(AS GUARANTOR)
AND
JPMORGAN CHASE BANK
(AS GUARANTEE TRUSTEE)
DATED AS OF
_______ __, 200_
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS.......................................................................................................1
SECTION 1.1 Definitions........................................................................................1
ARTICLE II
TRUST INDENTURE ACT...............................................................................................3
SECTION 2.1 Trust Indenture Act: Application..................................................................3
SECTION 2.2 List of Holders....................................................................................4
SECTION 2.3 Reports by the Guarantee Trustee...................................................................4
SECTION 2.4 Periodic Reports to the Guarantee Trustee..........................................................4
SECTION 2.5 Evidence of Compliance with Conditions Precedent...................................................4
SECTION 2.6 Events of Default; Waiver..........................................................................4
SECTION 2.7 Event of Default; Notice...........................................................................5
SECTION 2.8 Conflicting Interests..............................................................................5
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE....................................................................5
SECTION 3.1 Powers and Duties of the Guarantee Trustee.........................................................5
SECTION 3.2 Certain Rights of the Guarantee Trustee............................................................7
SECTION 3.3 Indemnity..........................................................................................8
ARTICLE IV
GUARANTEE TRUSTEE.................................................................................................9
SECTION 4.1 Guarantee Trustee; Eligibility.....................................................................9
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees.........................................9
ARTICLE V
GUARANTEE........................................................................................................10
SECTION 5.1 Guarantee.........................................................................................10
SECTION 5.2 Waiver of Notice and Demand.......................................................................10
SECTION 5.3 Obligations Not Affected..........................................................................10
SECTION 5.4 Rights of Holders.................................................................................11
SECTION 5.5 Guarantee of Payment..............................................................................11
SECTION 5.6 Subrogation.......................................................................................11
(i)
SECTION 5.7 Independent Obligations...........................................................................11
SECTION 5.8 Net Payments......................................................................................12
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING..............................................................................13
SECTION 6.1 Limitation of Transactions........................................................................13
SECTION 6.2 Ranking...........................................................................................14
SECTION 6.3 Pari Passu Guarantees.............................................................................14
ARTICLE VII
TERMINATION......................................................................................................14
SECTION 7.1 Termination.......................................................................................14
ARTICLE VIII
MISCELLANEOUS....................................................................................................14
SECTION 8.1 Successors and Assigns............................................................................14
SECTION 8.2 Amendments........................................................................................14
SECTION 8.3 Notices...........................................................................................15
SECTION 8.4 Benefit...........................................................................................16
SECTION 8.5 Governing Law.....................................................................................16
SECTION 8.6 Interpretation....................................................................................16
SECTION 8.7 Submission to Jurisdiction........................................................................17
SECTION 8.8 Judgment Currency.................................................................................17
(ii)
SENIOR DEBT SECURITIES GUARANTEE AGREEMENT
This SENIOR DEBT SECURITIES GUARANTEE AGREEMENT (this "Guarantee
Agreement" or this "Guarantee"), dated as of _______ __, 200_, is executed and
delivered by PartnerRe Ltd., a Bermuda company ("PartnerRe" or the "Guarantor"),
having its principal executive offices at 00 Xxxxx Xxx Xxxx, Xxxxxxxx HM 08,
Bermuda, and JPMorgan Chase Bank, a New York banking corporation, having a
corporate trust office located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as trustee (the "Guarantee Trustee"), for the benefit of the Holders (as
defined herein) from time to time of the Debentures (as defined herein) issued
by PartnerRe Finance II Inc., a Delaware corporation (the "Issuer").
WHEREAS, pursuant to a Senior Indenture, dated as of _______ __, 200_
(the "Indenture"), between the Issuer and JPMorgan Chase Bank, a New York
banking corporation, as trustee thereunder, the Issuer is issuing $___________
aggregate principal amount of its unsecured senior debt securities (the
"Debentures").
WHEREAS, as incentive for the Holders (as defined in the Indenture) to
purchase such Debentures, the Guarantor desires irrevocably and unconditionally,
to guarantee the obligations of the Issuer under the Indenture.
NOW, THEREFORE, in consideration of the purchase by the Holders of the
Debentures, 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 I
DEFINITIONS
SECTION 1.1 Definitions
-----------
As used in this Guarantee Agreement, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise defined terms used, but not otherwise defined herein shall have the
meanings assigned to such terms in the Indenture as in effect on the date
hereof.
"Additional Amounts" means any additional amounts which are required
------------------
hereby or by the terms of the Debentures, under circumstances specified herein
or therein, to be paid by the Guarantor in respect of certain taxes, assessments
or other governmental charges imposed on Holders specified herein and therein
and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purpose of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authorized Officer" means, when used with respect to any Person, the
------------------
Chairman of the Board of Directors, a Vice Chairman, the President, a Vice
President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer,
the Chief Investment Officer, the Chief Accounting Officer, the General Counsel,
the Secretary or an Assistant Secretary, of such Person.
"Capitalized Lease Obligations" means an obligation under a lease that
-----------------------------
is required to be capitalized for financial reporting purposes in accordance
with generally accepted accounting principles, and the amount of Indebtedness
represented by such obligation shall be the capitalized amount of such
obligation determined in accordance with such principles.
"Debentures" has the meaning set forth in the preamble hereto.
----------
"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 JPMorgan Chase Bank, 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.
"Indebtedness" means, with respect to any Person, (i) the principal of
------------
and any premium and interest on (a) indebtedness of such Person for money
borrowed and (b) indebtedness evidenced by notes, debentures, bonds or other
similar instruments for the payment of which such Person is responsible or
liable; (ii) all Capitalized Lease Obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of
property, all conditional sale obligations and all obligations under any title
retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (iv) all obligations of such Person for the
reimbursement of any obligor on any letter of credit, banker's acceptance or
similar credit transaction (other than obligations with respect to letters of
credit securing obligations (other than obligations described in (i) through
(iii) above) entered into in the ordinary course of business of such Person to
the extent such letters of credit are not drawn upon or, if and to the extent
drawn upon, such drawing is reimbursed no later than the third Business Day
following receipt by such Person of a demand for reimbursement following payment
on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the
payment of which, in either case, such Person is responsible or liable as
obligor, guarantor or otherwise; and (vi) all obligations of the type referred
to in clauses (i) through (v) of other Persons secured by any lien on any
property or asset of such Person (whether or not such obligation is assumed by
such Person), the amount of such obligation being deemed to be the lesser of the
value of such property or assets or the amount of the obligation so secured; and
(vii) any amendments, modifications, refundings, renewals or extensions of any
indebtedness or obligation described as Indebtedness in clauses (i) through (vi)
above.
"Indenture" has the meaning set forth in the preamble hereto.
---------
2
"List of Holders" has the meaning specified in Section 2.2(a).
---------------
"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
(d) a statement as to whether, in the opinion of such officer, such
condition or covenant has been complied with.
"Person" means a legal person, including any individual, corporation,
------
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association or government or any agency
or political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
-------------------
officer of the Guarantee Trustee with direct responsibility for administration
of this Guarantee Agreement and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
---------------------------
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
-------------------
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act: Application
--------------------------------
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
3
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 List of Holders
---------------
(a) Within 30 days after the receipt by the Guarantor of a request in
writing from the Guarantee Trustee, the Guarantor shall furnish or cause to be
furnished to the Guarantee Trustee a list, in such form as the Guarantee Trustee
may reasonably require, of the names and addresses of the Holders ("List of
Holders"), such List of Holders to be as of a date not more than 15 days prior
to the time such List of Holders is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee
--------------------------------
Within 60 days after_______ 15 of each year commencing with _______ 15,
200_, the Guarantee Trustee shall provide to the Holders such reports as are
required by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to the Guarantee Trustee
-----------------------------------------
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders, such documents, reports and
information, if any, as required by Section 314 of the Trust Indenture Act and
the compliance certificate required by Section 314 of the Trust Indenture Act,
in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
------------------------------------------------
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
-------------------------
The holders of not less than a majority of the outstanding principal
amount of the Debentures 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
4
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Guarantee Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
------------------------
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default known to the Guarantee Trustee, transmit by mail, first
class postage prepaid, to the Holders, notices of all such Events of Default,
unless such defaults have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment by the Guarantor of any
amount due under this Guarantee Agreement, the Guarantee Trustee shall be
protected in withholding such notice if and so long as a the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Guarantee Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer of the Guarantee Trustee shall have actual
knowledge or shall have obtained written notice, of such Event of Default.
SECTION 2.8 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 III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee
------------------------------------------
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default hereunder or under the Indenture has
occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee
Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of
Default hereunder or under the Indenture and after the curing or waiver of all
Events of Default that may have
5
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 2.6), 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.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its negligent
failure to act or its own bad faith or willful misconduct, except that:
(i) prior to the occurrence of any Event of Default hereunder
or under the Indenture and after the curing or waiving of any such
Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; but in the case
of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform
to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than a
majority of the outstanding principal amount of the Debentures relating
to the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee, or exercising any trust or
power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if the Guarantee
Trustee shall have reasonable grounds for believing that the repayment
of such funds or liability
6
is not reasonably assured to it under the terms of this Guarantee
Agreement or adequate indemnity against such risk or liability is not
reasonably assured to it.
SECTION 3.2 Certain Rights of the Guarantee Trustee
---------------------------------------
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely upon, and shall be fully
protected in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with competent legal
counsel, and the written advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice
or opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Guarantee Trustee
shall have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of competent
jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such security and
indemnity reasonably satisfactory to the Guarantee Trustee, against the
costs, expenses (including reasonable attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Guarantee Trustee; provided that, nothing contained in this Section
3.2(a)(v) shall be taken to relieve the Guarantee Trustee, upon the
occurrence of an Event of Default 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
7
indebtedness or other paper or document, but the Guarantee Trustee, in
its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, attorneys, custodians or nominees, and the Guarantee
Trustee shall not be responsible for any misconduct or negligence on
the part of any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action. No third party shall be required to inquire as
to the authority of the Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Guarantee
Agreement, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action.
(ix) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Guarantee Trustee (A) may request
instructions from the holders of not less than a majority of the
outstanding principal amount of the Debentures, (B) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.3 Indemnity
---------
The Guarantor agrees to indemnify the Guarantee Trustee and its
officers, directors, employees and agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence, bad faith
or willful misconduct on the part of the Guarantee Trustee, arising out of or in
connection with the acceptance or administration of this Guarantee Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder and including the reasonable fees and expenses of its counsel.
The Guarantee Trustee will not claim or exact any lien or charge on any
Guarantee Agreement as a result of any amount due to it under this Guarantee
Agreement.
The provisions of this Section 3.3 shall survive the termination of
this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
8
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility
------------------------------
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Issuer; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital of at least 50
million U.S. dollars ($50,000,000), and shall be a corporation meeting
the requirements of Section 310(c) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this Section 4.1(a)(ii), the
combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report
of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to
so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in
the manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustees
----------------------------------------------------------
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with
Section 4.2(a) until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent
9
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 V
GUARANTEE
SECTION 5.1 Guarantee
---------
The Guarantor hereby irrevocably and unconditionally guarantees to each
Holder the due and punctual payment of the principal of, any premium and
interest (including any Additional Interest) on, any Additional Amounts, and, if
applicable, any Additional Sums with respect to any Debenture 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 Debenture and of 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 Debentures 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 Debentures guaranteed hereby.
SECTION 5.2 Waiver of Notice and Demand
---------------------------
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the
Guarantee Trustee, 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 5.3 Obligations Not Affected
------------------------
The obligations, covenants, agreements and duties of the Guarantor
under this Guarantee shall be as if it were a principal debtor, and not merely a
surety, and shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Debentures to be performed or
observed by the Issuer;
(b) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Debentures, or any action
on the part of the Issuer granting indulgence or extension of any kind;
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
10
(d) any invalidity or unenforceability of, or defect or deficiency in,
the Debentures; or
(e) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.3 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or
obtain the consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
-----------------
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the holders of not less than a
majority of the outstanding principal amount of the Debentures have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee Agreement; and (iv) any Holder may, to the extent permitted
by law, institute a legal proceeding directly against the Guarantor to enforce
its rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives any right or remedy to require that any action on this
Guarantee Agreement be brought first against the Issuer or any other Person or
entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
--------------------
This Guarantee creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment in full of all
amounts (without duplication of amounts theretofore paid by the Issuer) owed
under the Debentures.
SECTION 5.6 Subrogation
-----------
The Guarantor shall be subrogated to all rights, if any, of the Holders
against the Issuer in respect of any amounts paid to such Holders by the
Guarantor under this Guarantee Agreement; provided, however, that the Guarantor
shall not (except to the extent required by mandatory provisions of 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 5.7 Independent Obligations
-----------------------
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Debentures, and
that the Guarantor shall be liable as
11
principal and as debtor hereunder to make all payments with respect to the
Debentures pursuant to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in subsections (a) through (e), inclusive,
of Section 5.3 hereof.
SECTION 5.8 Net Payments
------------
All payments required to be made hereunder shall be made by the
Guarantor without withholding or deduction at source for, or on account of, any
present or future taxes, fees, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the Islands of Bermuda or
such other jurisdiction in which the Guarantor (or any of its successors under
the Guarantee Agreement) may be organized (each, a "taxing jurisdiction") or any
political subdivision or taxing authority thereof or therein, unless such taxes,
fees, duties, assessments or governmental charges are required to be withheld or
deducted by (i) the laws (or any regulations or ruling promulgated thereunder)
of a taxing jurisdiction or any political subdivision or taxing authority
thereof or therein or (ii) an official position regarding the application,
administration, interpretation or enforcement of any such laws, regulations or
rulings (including, without limitation, a holding by a court of competent
jurisdiction or by a taxing authority in a taxing jurisdiction or any political
subdivision thereof). If a withholding or deduction at source is required, the
Guarantor shall, subject to certain limitations and exceptions set forth below,
pay to the Holder of any Debenture such Additional Amounts as may be necessary
so that every guarantee payment made to such Holder, after such withholding or
deduction, shall not be less than the amount provided for in the Indenture and
this Guarantee Agreement to be then due and payable; provided, however, that the
Guarantor shall not be required to make payment of such Additional Amounts for
or on account of:
(1) any tax, fee, duty, assessment or governmental charge of whatever
nature which would not have been imposed but for the fact that such Holder: (A)
was a resident, domiciliary or national of, or engaged in business or maintained
a permanent establishment or was physically present in, the relevant taxing
jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the
mere ownership of, or receipt of payment under, such Debenture; (B) presented
such Debenture for payment in the relevant taxing jurisdiction or any political
subdivision thereof, unless such Debenture could not have been presented for
payment elsewhere; or (C) presented such Debenture more than thirty (30) days
after the date on which the payment in respect of such Debenture first became
due and payable or provided for, whichever is later, except to the extent that
the Holder would have been entitled to such Additional Amounts if it had
presented such Debenture for payment on any day within such period of thirty
(30) days;
(2) any estate, inheritance, gift, sale, transfer, personal property or
similar tax, assessment or other governmental charge;
(3) any tax, assessment or other governmental charge that is imposed or
withheld by reason of the failure by the Holder or the beneficial owner of such
Debenture to comply with any reasonable request by the Issuer addressed to the
Holder within 90 days of such request (A) to provide information concerning the
nationality, residence or identity of the Holder or such beneficial owner or (B)
to make any declaration or other similar claim or satisfy any information or
reporting requirement, which, in the case of (A) or (B), is required or imposed
by statute,
12
treaty, regulation or administrative practice of the relevant taxing
jurisdiction or any political subdivision thereof as a precondition to exemption
from all or part of such tax, assessment or other governmental charge; or
(4) any combination of items (1), (2) and (3);
nor shall Additional Amounts be paid with respect to any Guarantee Payment to
any Holder who is a fiduciary or partnership or other than the sole beneficial
owner of the related Debenture, but only to the extent such payment would be
required by the laws of the relevant taxing jurisdiction (or any political
subdivision or relevant taxing authority thereof or therein) to be included in
the income for tax purposes of a beneficiary or partner or settlor with respect
to such fiduciary or a member of such partnership or a beneficial owner who
would not have been entitled to such Additional Amounts had it been the Holder
of such Debenture.
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING
SECTION 6.1 Limitation of Transactions
--------------------------
The Guarantor hereby covenants and agrees that, so long as any
Debentures 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
Debentures 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 Debentures or the guarantee in respect thereof, as
the case may be (other than (i) dividends or distributions in shares of, or
options, warrants, rights to subscribe for or purchase shares of, common shares
of the Guarantor, (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (iii) the purchase of fractional shares resulting from a
reclassification of the Guarantor's capital stock, (iv) the exchange or
conversion of any class or series of the Guarantor's (or any Subsidiary's)
capital stock for another class or series of the Guarantor's (or any
Subsidiary's) capital stock or of any class or series of the Guarantor's (or any
Subsidiary's) indebtedness, (v) the purchase of fractional interests in shares
of the Guarantor's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged;
and (vi) repurchases, redemptions or other acquisitions of shares of capital
stock of the Guarantor or any subsidiary under any employment agreement or
benefit plan for the benefit of the Guarantor's directors, officers, or
employees, or any dividend reinvestment or director, officer or employee stock
purchase plan of the Guarantor) if at such time (1) there shall have occurred
any event of which the Guarantor has actual knowledge that (A) with the giving
of notice or the lapse of time or both, would constitute an Event of Default
under the Indenture and (B) in respect of which the Guarantor shall not have
taken reasonable steps to cure, (2) the Guarantor shall be in default with
respect to its payment of any obligations
13
under this Guarantee Agreement or (3) the Issuer shall have given notice of
election to begin an Extension Period with respect to the Debentures as provided
in the Indenture and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing.
SECTION 6.2 Ranking
-------
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank senior to the Guarantor's common shares.
SECTION 6.3 Pari Passu Guarantees
---------------------
This Guarantee Agreement shall rank pari passu with any similar
guarantee agreements issued by the Guarantor on behalf of holders of senior
debentures issued by any entity affiliated with the Guarantor which is a
financing vehicle of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
-----------
This Guarantee shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price of all Debentures 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 Debentures or under this Guarantee
Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns
----------------------
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Debentures
then outstanding. Except in connection with a consolidation, merger, or sale
involving the Guarantor that is permitted under Article 8 of the Indenture and
pursuant to which the assignee agrees in writing to perform the Guarantor's
obligations hereunder, the Guarantor shall not assign its obligations hereunder.
SECTION 8.2 Amendments
----------
Except with respect to any changes that do not adversely affect the
rights of Holders in any material respect (in which case no consent of Holders
will be required) and any changes to Sections 5 and 6.1 hereof, which may only
be amended in writing with the prior approval of each Holder, this Guarantee
Agreement may only be amended in writing by the parties hereto with the prior
approval of the holders of not less than a majority of the outstanding principal
amount of
14
the Debentures. The provisions of Article 15 of the Indenture concerning
meetings of Holders apply to the giving of such approval.
SECTION 8.3 Notices
-------
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and shall be delivered, telecopied or mailed by first class mail, as
follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's
mailing address set forth below (or such other address as the Guarantee Trustee
may give notice of to the Guarantor and the Holders):
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders):
PartnerRe Ltd.
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Counsel
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. X'Xxxxxxxx, Esq.
(c) If given to the Issuer, in care of the Guarantee Trustee, at the
Issuer's (and the Guarantee Trustee's) address set forth below or such other
address as the Guarantee Trustee on behalf of the Issuer may give notice to the
Holders:
PartnerRe Finance II Inc.
c/o PartnerRe Ltd.
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx: General Counsel
with a copy to:
JPMorgan Chase Bank
15
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Institutional Trust Services
(d) If given to any Holder, at the address set forth on the books and
records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 8.4 Benefit
-------
This Guarantee is solely for the benefit of the Holders and is not
separately transferable from the Debentures.
SECTION 8.5 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 8.6 Interpretation
--------------
In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined
in the preamble hereto have the respective meanings assigned to them in Section
1.1 or in the Indenture, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement, unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee Agreement, unless otherwise defined in this Guarantee
Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine, or neuter genders used herein shall
include the masculine, feminine and neuter genders.
16
SECTION 8.7 Submission to Jurisdiction
--------------------------
The Guarantor agrees that any judicial proceedings instituted in
relation to any matter arising under this Guarantee Agreement may be brought in
any United States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York to the extent that such court has
subject matter jurisdiction over the controversy, and, by execution and delivery
of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally
and unconditionally, the jurisdiction of the aforesaid courts, acknowledges
their competence and irrevocably agrees to be bound by any judgment rendered in
such proceeding. The Guarantor also irrevocably and unconditionally waives for
the benefit of the Guarantee Trustee and the Holders any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Guarantee Agreement. The Guarantor
hereby irrevocably designates and appoints, for the benefit of the Guarantee
Trustee and the Holders for the term of this Guarantee Agreement, PartnerRe U.S.
Corporation, Xxx Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000-0000, as its agent to
receive on its behalf service of all process (with a copy of all such service of
process to be delivered to Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. X'Xxxxxxxx, Esq.) brought against it
with respect to any such proceeding in any such court in The City of New York,
such service being hereby acknowledged by the Guarantor to be effective and
binding service on it in every respect whether or not the Guarantor shall then
be doing or shall have at any time done business in New York. Such appointment
shall be irrevocable so long as any of the Securities or the obligations of the
Guarantor hereunder remain outstanding, or until the appointment of a successor
located in New York or Connecticut by the Guarantor and such successor's
acceptance of such appointment. Upon such acceptance, the Guarantor shall notify
the Guarantee Trustee in writing of the name and address of such successor. The
Guarantor further agrees for the benefit of the Guarantee Trustee and the
Holders to take any and all action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of said PartnerRe U.S. Corporation in full force and
effect so long as any of the Debentures 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 8.8 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
17
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.
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK]
18
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
PARTNERRE LTD.,
as Guarantor
By:
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK,
as Guarantee Trustee
By:
------------------------------------
Name:
Title:
19
