Partnerre Ltd 6-K, filed Sep 22, 2020
Partnerre Ltd (PREJF)
About this 6-K
Partnerre Ltd filed this 6-K on September 22, 2020.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13A-16 OR 15D-16
OF THE SECURITIES EXCHANGE ACT OF 1934
For the month of September 2020
Commission File Number: 1-14536
PartnerRe Ltd.
(Translation of registrant’s name into English)
Wellesley House South
90 Pitts Bay Road
Pembroke HM08
Bermuda
(441) 292-0888
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.
Form 20-F xForm 40-F ¨
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b) (1):
Yes ¨ No x
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b) (7): ¨
Yes ¨ No x
Indicate by check mark whether by furnishing the information contained in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes ¨ No x
If “Yes” is marked, indicate below the file number assigned to the registrant in connection with Rule 12g3-2(b): 82-.
THIS REPORT ON FORM 6-K IS BEING FILED FOR THE PURPOSES OF INCORPORATION BY REFERENCE IN THE REGISTRATION STATEMENTS ON FORM F-3 (File No. 333-231716). THIS REPORT SHALL BE DEEMED FILED AND INCORPORATED BY REFERENCE IN SUCH REGISTRATION STATEMENTS AND SHALL BE DEEMED TO BE A PART THEREOF FROM THE DATE ON WHICH THIS REPORT IS FILED, TO THE EXTENT NOT SUPERSEDED BY DOCUMENTS OR REPORTS SUBSEQUENTLY FILED OR FURNISHED.
Exhibits are filed herewith in connection with the issuance of the 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (the “Notes”) by PartnerRe Finance B LLC (the “Company”), subject to an unconditional guarantee (the “Guarantee”) from PartnerRe Ltd. (the “Guarantor”), pursuant to the shelf registration statement of the Company and the Guarantor on Form F-3 (File Nos. 333-231716 and 333-231716-01).
EXHIBIT INDEX
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| PartnerRe Ltd. | ||
| September 22, 2020 | By: | /s/ Nick Burnet |
| Name: Nick Burnet | ||
| Title: Executive Vice President and Chief Financial Officer | ||
Exhibit 1.1
$500,000,000
PartnerRe Finance B LLC
4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050
Guaranteed on a Junior Subordinated Basis by
PartnerRe Ltd.
Underwriting Agreement
September 17, 2020
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
as Representatives of the Underwriters listed
in Schedule I hereto
Ladies and Gentlemen:
PartnerRe Finance B LLC, a Delaware limited liability company (the “Company”), proposes to issue and sell to the several Underwriters listed in Schedule I (the “Underwriters”) to this Underwriting Agreement (the “Agreement”), subject to the terms and conditions stated herein, an aggregate principal amount of $500,000,000 of its 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (the “Notes”) pursuant to an Indenture, to be dated as of the Closing Date (the “Base Indenture”), as supplemented by the First Supplemental Indenture (the “First Supplemental Indenture”), to be dated as of the Closing Date (as so supplemented, the “Indenture”), by and among the Company, PartnerRe Ltd., a Bermuda exempted company (the “Guarantor” and, together with the Company, the “PartnerRe Entities”), and The Bank of New York Mellon, as Trustee (in such capacity, the “Indenture Trustee”). The Notes will be fully and unconditionally guaranteed on a junior subordinated basis by the Guarantor (the “Guarantee” and, together with the Notes, the “Securities”) to the extent set forth in the Junior Subordinated Debt Guarantee Agreement, to be dated as of the Closing Date (the “Base Guarantee Agreement”), as supplemented by the First Supplemental Junior Subordinated Debt Guarantee Agreement (the “First Supplemental Junior Subordinated Debt Guarantee Agreement”), to be dated as of the Closing Date (as so supplemented, the “Guarantee Agreement”), by and between the Guarantor and The Bank of New York Mellon, as Guarantee Trustee (in such capacity, the “Guarantee Trustee”). Wells Fargo Securities, LLC, Barclays Capital Inc. and BofA Securities, Inc. shall act as the representatives (the “Representatives”) of the several Underwriters.
The PartnerRe Entities have filed with the Securities and Exchange Commission (the “Commission”), in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (the “Securities Act”), a Registration Statement on Form F-3 (Registration Nos. 333-231716 and 333-231716-01), including a related prospectus, relating to the registration of certain securities of the PartnerRe Entities, including the Securities, to be sold from time to time by the PartnerRe Entities. The registration statement as amended to the date of this Agreement is hereinafter referred to as the “Registration Statement” (for purposes of this definition, information contained in a form of prospectus or prospectus supplement that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Registration Statement as of the time specified in Rule 430B), and the related prospectus dated June 6, 2019 in the form first used to confirm sales of Securities (or in the form first made available to the Underwriters by the PartnerRe Entities to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Base Prospectus”. The Base Prospectus, as supplemented by the prospectus supplement specifically relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the PartnerRe Entities to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus”, and the term “preliminary prospectus” means the Base Prospectus, as supplemented by the preliminary prospectus supplement dated September 15, 2020.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act and “Time of Sale Prospectus” means the Base Prospectus and the preliminary prospectus, together with the free writing prospectuses, if any, each substantially in the form of Schedule II(A) hereto, as of the Applicable Time of Sale (as defined herein). As used herein, the terms “Registration Statement”, “Base Prospectus”, “preliminary prospectus”, “Time of Sale Prospectus” and “Prospectus” shall include the documents (or applicable portions thereof), if any, incorporated by reference therein. The terms “supplement”, “amendment” and “amend” as used in this Agreement with respect to the Registration Statement, the Base Prospectus, the Time of Sale Prospectus, the preliminary prospectus or any free writing prospectus shall include all documents subsequently filed by any of the PartnerRe Entities with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties of the PartnerRe Entities. The PartnerRe Entities jointly and severally represents and warrants to and agrees with each of the Underwriters that:
(a) The PartnerRe Entities and the transactions contemplated by this Agreement meet the requirements for using Form F-3 under the Securities Act. No stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the knowledge of any of the PartnerRe Entities, contemplated by the Commission. As part of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more preliminary prospectus supplements relating to the Securities, each of which has previously been furnished to the Underwriters, has been filed with the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder, (ii) the Registration Statement has been declared effective by the Commission under the Securities Act and does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) the Registration Statement, the Time of Sale Prospectus and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the applicable rules and regulations of the Commission thereunder, (iv) the Time of Sale Prospectus did not at 4:55 p.m., New York City time (the “Applicable Time of Sale”), contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (vi) each issuer free writing prospectus (as defined in Rule 433 of the Securities Act) listed on Schedule II(A) hereto (an “Issuer Free Writing Prospectus”) and the investor presentation listed on Schedule II(B) hereto (the “Investor Presentation”), in each case, when taken together with the Time of Sale Prospectus, did not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Guarantor in writing by such Underwriter through the Representatives expressly for use therein or (B) that part of the Registration Statement that constitutes the Statement of Eligibility (Form T-1) under the Trust Indenture Act. No order preventing or suspending the use of any preliminary prospectus has been issued by the Commission and no proceedings for that purpose shall have been instituted or, to the knowledge of any of the PartnerRe Entities, threatened or contemplated by the Commission.
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(c) The Guarantor is a “foreign private issuer”, as such term is defined in Rule 405 under the Securities Act, and each of the PartnerRe Entities is not an “ineligible issuer” pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the PartnerRe Entities are required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the PartnerRe Entities have filed, or are required to file, pursuant to Rule 433(d) under the Securities Act complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II(A) and Schedule II(B) hereto, the PartnerRe Entities have not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus related to the offering of Securities.
(d) The Guarantor has been duly organized, is validly existing as an exempted company in good standing under the laws of Bermuda, has the power and authority to own, lease and operate its property and to conduct its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly registered, qualified and authorized to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership, leasing or operation of property requires such registration, qualification or authorization, except to the extent that the failure to be so registered, qualified or authorized or be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business or operations of the Guarantor and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(e) Partner Reinsurance Company Ltd., a Bermuda exempted company (“Partner Reinsurance”), Partner Reinsurance Company of the U.S. (“PartnerRe U.S.”), Partner Reinsurance Asia Pte. Ltd. (“PartnerRe Asia”), and Partner Reinsurance Europe SE, an Irish company (“PartnerRe Europe” and, collectively with Partner Reinsurance, PartnerRe U.S., PartnerRe Asia and PartnerRe Europe, the “Subsidiaries”), are each wholly owned, directly or indirectly, by the Guarantor, and are the only “significant subsidiaries” of the Guarantor within the meaning of Rule 405 under the Securities Act. Each of the Company and the Subsidiaries has been duly organized, is validly existing as a limited liability company, corporation or other legal entity, as the case may be, in good standing under the laws of the jurisdiction of its organization, has the power and authority to own, lease and operate its property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus and is duly registered, qualified and authorized to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership, leasing or operation of property requires such registration, qualification or authorization, except to the extent that the failure to be so registered, qualified or authorized or be in good standing would not have a Material Adverse Effect; and all of the issued and outstanding shares of capital stock or limited liability company interests of each Subsidiary and the Company have been duly authorized and are validly issued, and with respect to capital stock are fully paid and non-assessable, and are owned directly or indirectly by the Guarantor, free and clear of all security interests, liens, encumbrances, equities or claims.
(f) The authorized share capital stock or membership interests, as applicable, of the Guarantor and the Company conforms as to legal matters to the descriptions thereof contained in the Time of Sale Prospectus and the Prospectus.
(g) The Guarantor and the Subsidiaries maintain disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such disclosure controls and procedures have been designed to ensure that the information required to be disclosed by the Guarantor in reports filed under the Exchange Act is (i) recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, and (ii) accumulated and communicated to management, including the chief executive officer and chief financial officer, as appropriate, to allow timely decisions regarding disclosure; and such disclosure controls and procedures are effective.
(h) This Agreement has been duly authorized, executed and delivered by each of the PartnerRe Entities.
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(i) The Notes have been duly authorized, and, when issued, authenticated and delivered pursuant to the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and binding obligations of the Company, entitled to the benefits provided by the Indenture and the Guarantee subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); each of the Base Indenture and the First Supplemental Indenture has been duly authorized and when executed and delivered by the Company and the Guarantor and upon the due authorization, execution and delivery thereof by the Trustee, the Base Indenture and the First Supplemental Indenture will constitute a valid and binding instrument of the Company and the Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); each of the Base Guarantee Agreement and the First Supplemental Junior Subordinated Debt Guarantee Agreement has been duly authorized and when executed and delivered by the Guarantor and upon the due authorization, execution and delivery thereof by the Guarantee Trustee, the Base Guarantee Agreement and the First Supplemental Junior Subordinated Guarantee Agreement will constitute a valid and binding instrument of the Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity); and the Indenture and Securities will conform, in all material respects, to the respective descriptions thereof in the Time of Sale Prospectus and the Prospectus.
(j) None of the PartnerRe Entities nor any of the Subsidiaries is (i) in violation of its certificate of incorporation, certificate of formation, operating agreement, memorandum of association or bye-laws or other organizational documents, (ii) in violation of any law, ordinance, administrative or governmental rule or regulation applicable to any of them or any of their respective properties (except where any such violation or violations individually or in the aggregate would not have a Material Adverse Effect), (iii) in violation of any judgment, injunction, restraining order, decree or order of any nature (collectively, any “Order”) of any court, tribunal, regulatory body, administrative agency or other governmental body, commission, agency, or official, or any arbitrator or self-regulatory organization (including, without limitation, any insurance regulatory agency or body) (collectively, a “Regulatory Authority”) having jurisdiction over any of them (except where any such violation or violations individually or in the aggregate would not have a Material Adverse Effect), or (iv) in default in the performance or observance of any obligation, agreement, covenant or condition contained in any bond, debenture, note or any other evidence of indebtedness or in any contract, agreement, indenture, lease or other instrument to which any of the PartnerRe Entities or the Subsidiaries is a party or by which any of them is bound or to which any of their respective properties or assets is subject, and no condition or state of facts exists which, with the passage of time or the giving of notice or both, would constitute such a default (except where any such default or defaults individually or in the aggregate would not have a Material Adverse Effect).
(k) The Indenture, upon execution as of the Closing Date, has been duly qualified under the Trust Indenture Act.
(l) Neither the issuance, sale and delivery of the Notes nor the compliance by the Company with all the provisions of the Notes, the Indenture, this Agreement and the consummation of the transactions contemplated hereby will (A) conflict with or contravene any provision of (i) any applicable statute, law, regulation, ruling or filing, (ii) the certificate of formation and operating agreement of the Company, (iii) any bond, debenture, note or other evidence of indebtedness or any agreement, indenture, lease or other instrument to which the Company is a party or by which it is or may be bound or to which its properties or assets is or may be subject, or (iv) any Order of any Regulatory Authority that is applicable to the Company, except, with respect to the foregoing clauses (i), (iii), and (iv), to the extent such conflict or contravention would not have a Material Adverse Effect, or (B) result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any agreement or instrument to which it is a party or by which it is bound or to which any of its property or assets is subject (except where any such lien, charge or encumbrance would not have a Material Adverse Effect).
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(m) Neither the execution and delivery by the Guarantor of, or the performance by it of its obligations under, this Agreement, the Indenture, the Guarantee Agreement, nor the consummation of the transactions contemplated hereby will (A) conflict with or contravene any provision of (i) any applicable statute, law, regulation, ruling or filing, (ii) the memorandum of association, certificate of incorporation, bye-laws or other organizational documents of any of the Guarantor or the Subsidiaries, (iii) any bond, debenture, note or other evidence of indebtedness or any agreement, indenture, lease or other instrument to which any of the Guarantor or the Subsidiaries is a party or by which any of them is or may be bound or to which any of their respective properties or assets is or may be subject, or (iv) any Order of any Regulatory Authority that is applicable to any of the Guarantor or the Subsidiaries or any of their respective properties, except, with respect to the foregoing clauses (i), (iii), and (iv), to the extent such conflict or contravention would not have a Material Adverse Effect, or (B) result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of any of the Guarantor or the Subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the property or assets of any of them is subject (except where any such lien, charge or encumbrance would not have a Material Adverse Effect).
(n) No consent, approval, authorization or order of, qualification with, or registration or filing with any Regulatory Authority applicable to the PartnerRe Entities or any of their properties is required for the performance by the PartnerRe Entities of their obligations under this Agreement, the Securities, the Guarantee Agreement or the Indenture, except such as may be required (1) for filings under the Securities Act, the Exchange Act or the Trust Indenture Act, and (2) under the securities or Blue Sky or insurance securities laws of the various states in connection with the offer and sale of the Securities, all of which have been or will be effected on or prior to the Closing Date.
(o) The consolidated financial statements of the Guarantor (together with related schedules and notes) included in the Time of Sale Prospectus and the Prospectus comply as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder and present fairly, in all material respects, the consolidated financial position of the Guarantor as at the dates indicated and the results of its operations and its cash flows for the periods specified. The other summary financial information of the Guarantor included in the Time of Sale Prospectus and the Prospectus present fairly, in all material respects, the information contained therein for the periods specified. The financial statements of the Guarantor, related schedules and notes and other summary financial information of the Guarantor included in the Time of Sale Prospectus and the Prospectus have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the periods involved. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Time of Sale Prospectus and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(p) There has not occurred any material adverse change or any development involving a prospective material adverse change in the condition, financial or otherwise, or on the earnings, business or operations of the Guarantor and the Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement).
(q) There are no legal or governmental proceedings pending or, to the knowledge of any of the PartnerRe Entities or the Subsidiaries, threatened to which any of them is a party or to which any of their respective properties is subject that are required to be described in the Time of Sale Prospectus and the Prospectus and are not so described or any statutes, regulations, agreements, contracts, indentures, leases, or other instruments or documents that are required to be described in the Time of Sale Prospectus and the Prospectus or to be filed as exhibits to the Registration Statement or to any documents incorporated by reference therein that are not described or filed as required.
(r) Each of the Guarantor and the Subsidiaries (i) is in compliance with the applicable requirements of the insurance statutes, including the statutes relating to companies which control insurance companies, and the rules, regulations and interpretations of the insurance regulatory authorities thereunder (“Insurance Laws”) of its jurisdiction of incorporation, and (ii) has filed all reports, information statements, documents, and other information required to be filed thereunder, except in the case of the foregoing clauses (i) and (ii) where the failure to comply would not have a Material Adverse Effect; each of the Guarantor and its Subsidiaries (as applicable) maintains its books and records in accordance with and is in compliance with the Insurance Laws of other jurisdictions which are applicable to any of them, except where the failure to comply would not have a Material Adverse Effect.
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(s) There are no contracts, agreements or understandings between the PartnerRe Entities and any person granting such person the right to require any of the PartnerRe Entities to include such securities with the Securities registered pursuant to the Registration Statement.
(t) Each of the Guarantor and the Subsidiaries possesses such consents, authorizations, approvals, orders, franchises, licenses, certificates (including certificates of authority), or permits issued by any regulatory agencies or bodies (collectively, “Permits”) of and from, and has made all declarations and filings with, all Regulatory Authorities which are necessary to conduct the business as described in the Time of Sale Prospectus and the Prospectus, except where the failure to possess such Permits or to make such declarations or filings would not have a Material Adverse Effect; all of such Permits are in full force and effect, and neither the Guarantor nor the Subsidiaries has received any notification from any Regulatory Authority, in the United States, its jurisdiction of incorporation or elsewhere concerning any alleged violation of the terms of, or proposed proceeding to revoke or that could reasonably be expected to lead to the revocation, modification, termination, suspension or any other material impairment of the rights of the holder of any Permit or to the effect that any additional Permit from such authority, commission or body is needed to be obtained by any of them or that any of them is not in compliance with any applicable Insurance Laws; and no insurance regulatory agency or body has issued any order or decree impairing, restricting or prohibiting the payment of any dividends by either of the Guarantor or the Subsidiaries or the continuation of the business of any of them as currently conducted.
(u) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment or supplement thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(v) None of the PartnerRe Entities are, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus, none of the PartnerRe Entities will be, required to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(w) Each of the Subsidiaries is duly registered as an insurer or reinsurer where it is required to be so registered to conduct its business as described in the Time of Sale Prospectus and the Prospectus (except where the failure to be so registered would not have a Material Adverse Effect) and is subject to regulation and supervision in its jurisdiction of incorporation, and the Guarantor is not required to be so registered. Each of the Guarantor and the Subsidiaries is duly licensed or admitted as an insurer or an insurance holding company, as applicable, in each jurisdiction where it is required to be so licensed or admitted to conduct its business as described in the Time of Sale Prospectus and the Prospectus, except for where the failure to be so licensed or admitted would not have a Material Adverse Effect.
(x) None of the Underwriters or any subsequent purchasers of the Securities (other than purchasers resident in Bermuda for Bermuda exchange control purposes) is subject to any stamp duty, excise or similar tax imposed in Bermuda in connection with the offering, sale or purchase of the Securities.
(y) Any material tax returns required to be filed by either the Guarantor or any of the Subsidiaries in any jurisdiction have been filed, and any material taxes, including franchise taxes and similar fees and any withholding taxes, penalties and interest, assessments and fees and other charges due or claimed to be due from such entities have been paid, other than any of those being contested in good faith and for which adequate reserves have been provided or any of those currently payable without penalty or interest.
(z) The Guarantor and Partner Reinsurance have each received from the Bermuda Minister of Finance an assurance under The Exempted Undertakings Tax Protection Act, 1966 of Bermuda (as amended), to the effect set forth in the Guarantor’s Annual Report on Form 20-F for the year ended December 31, 2019 under the caption “Business Overview-Taxation of the Company and its Subsidiaries-Bermuda”, and neither the Guarantor nor Partner Reinsurance has received any notification to the effect (or is otherwise aware) that such assurance may be revoked or otherwise not honored by the Bermuda government.
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(aa) Ernst & Young Ltd., who reported on the consolidated financial statements and supporting schedules of the Guarantor for the year ended December 31, 2019 included in the Time of Sale Prospectus and the Prospectus (or any amendment or supplement thereto), is an independent registered public accounting firm with respect to the Guarantor as required by the Securities Act.
(bb) The Guarantor maintains, and each of the Subsidiaries maintain, a system of internal control over financial reporting (as such term is defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with United States generally accepted accounting principles and with statutory accounting principles, as the case may be, and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Since the date of the latest audited financial statements included or incorporated by reference in the Time of Sale Prospectus and the Prospectus, there has been no change in the Guarantor’s and the Subsidiaries’ internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Guarantor’s and each of the Subsidiaries’ internal control over financial reporting.
(cc) The Guarantor has duly, validly and irrevocably appointed PartnerRe U.S. Corporation as its agent for the purposes described in Section 13 of this Agreement and to receive service of process in actions against it arising out of or in connection with violations of the U.S. Federal securities laws in any Federal court or state court in the United States relating to the transactions covered by the Time of Sale Prospectus and the Prospectus.
(dd) Neither the Guarantor nor the Subsidiaries or any employee or agent thereof has made any payment of funds or received or retained any funds in violation of any law, rule or regulation, which payment, receipt or retention of funds is of a character required to be disclosed in the Time of Sale Prospectus or the Prospectus, except where such payment, receipt or retention of funds would not have a Material Adverse Effect.
(ee) Reserved.
(ff) The statements set forth in the Time of Sale Prospectus and the Prospectus under the captions “Description of the Notes and the Guarantees”, “Description of Debt Securities” and “Description of Debt Securities Guarantees” insofar as they purport to constitute a summary of the terms of the Securities, and under the caption “Taxation”, insofar as they purport to describe the provisions of the laws and documents referred to therein, are accurate, complete and fair.
(gg) None of the Guarantor, any of its subsidiaries or, to the knowledge of the Guarantor, any director, officer, agent, employee or other person acting on behalf of the Guarantor or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), the U.K. Bribery Act 2010 (the “Bribery Act”) or any other applicable anti-bribery or anti-corruption law; and the Guarantor and its subsidiaries have conducted their business in compliance with the FCPA, the Bribery Act and other applicable anti-bribery and anti-corruption laws and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. None of the PartnerRe Entities will, directly or indirectly, use the proceeds of the offer and sale of the Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, affiliate, joint venture partner or other person or entity, for the purpose of financing or facilitating any activity that would violate the laws and regulations as referred to in clause (iii) above.
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(hh) The operations of the Guarantor and its subsidiaries are and have been conducted at all times in material compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions where the Guarantor and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Guarantor or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Guarantor, threatened.
(ii) None of the Guarantor, any of its subsidiaries or, to the knowledge of the Guarantor, any director, officer, agent, employee or affiliate of the Guarantor or any of its subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or any other relevant sanctions authority; and the Company will not, directly or indirectly, use the proceeds of the offering of the Notes hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
(jj) (i)(x) There has been no security breach or other compromise of or relating to any of the Guarantor’s or the Subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (y) the Guarantor and the Subsidiaries have not been notified of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; and (ii) the Guarantor and the Subsidiaries are presently in compliance with all applicable laws or statutes, rules and regulations of any governmental or regulatory authority relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of clauses (i) or (ii), individually or in the aggregate, have a Material Adverse Effect.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, hereby agrees, severally and not jointly, to purchase from the Company at 99.000% of the principal amount of the Notes (the “Purchase Price”) set forth in Schedule I hereto opposite the name of such Underwriter.
Each of the PartnerRe Entities hereby agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the period beginning on the date hereof and continuing to and including the Closing Date, offer, sell, contract to sell or otherwise dispose of any securities substantially similar to the Securities. The foregoing sentence shall not apply to the Securities to be sold hereunder.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after this Agreement has become effective as in your judgment is advisable. The Company is further advised by you that the Securities are to be offered to the public initially at 100.000% of the principal amount of the Notes (the “Public Offering Price”) plus accrued interest, if any, to the Closing Date and to certain dealers selected by you at a price that represents a concession not in excess of 0.600% of the principal amount of the Notes under the Public Offering Price, and any Underwriter may allow, and such dealers may reallow, a concession, not in excess of 0.400% of the principal amount of the Notes to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Securities to be sold by the Company shall be made to the Company in Federal or other funds immediately available in New York City against delivery of the Securities to you for the respective accounts of the several Underwriters at 9:00 a.m., New York City time, on September 22, 2020, or at such other time on the same or such other date, not later than three business days after the date of this Agreement as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “Closing Date”.
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The Company will deliver to you on the Closing Date, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment of the Purchase Price, the Securities in the form of one or more permanent global certificates, registered in the name of Cede & Co., as nominee for the Depository Trust Company.
5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the PartnerRe Entities in this Agreement are, at and as of the Closing Date, true and correct, the condition that the PartnerRe Entities shall have performed all of their obligations hereunder theretofore to be performed, and to the following conditions:
(a) The Prospectus, as amended or supplemented and each Issuer Free Writing Prospectus listed on Schedule II(A) hereto relating to the Securities shall have been filed with the Commission within the applicable time periods prescribed for such filing by the rules and regulations under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or suspending the qualification of the Indenture shall have been instituted or shall be pending or, to the knowledge of any of the PartnerRe Entities, shall be contemplated by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Underwriters.
(b) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred a downgrade from the rating as of the date hereof, nor shall any notice have been given of any intended or potential downgrading from the rating as of the date hereof, accorded the Guarantor’s securities which are rated as of the date of this Agreement by Standard & Poor’s Rating Services or Moody’s Investor Services, Inc.; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or on the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus.
(c) The Underwriters shall have received on the Closing Date:
(i) a certificate, dated the Closing Date and signed by an executive officer of the Guarantor, to the effect set forth in Section 5(b)(i) above and to the effect that (A) the representations and warranties of the Guarantor contained in this Agreement are true and correct as of the Closing Date and that the Guarantor has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date and (B) there has not occurred any material adverse change, or any development involving a prospective material adverse change in the condition, financial or otherwise, or on the earnings, business or operations of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement); and
(ii) a certificate, dated the Closing Date and signed by an executive officer of the Company to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date, and the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
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(d) The Underwriters shall have received on the Closing Date an opinion and letter of Sullivan & Cromwell LLP, United States counsel for the PartnerRe Entities, dated the Closing Date and addressed to you, as Representatives of the Underwriters in form and substance reasonably satisfactory to counsel for the Underwriters, to the effect set forth on Exhibits A and A-1.
(e) The Underwriters shall have received on the Closing Date an opinion of Conyers Dill & Pearman Limited, Bermuda counsel to the PartnerRe Entities, dated the Closing Date, and addressed to you, as Representatives of the Underwriters, in form and substance reasonably satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit B.
(f) The Underwriters shall have received on the Closing Date an opinion of Cravath, Swaine & Moore LLP, counsel for the Underwriters, dated the Closing Date in form and substance satisfactory to the Underwriters. The opinions described in paragraphs 5(d) - 5(e) above shall be rendered to the Underwriters at the request of the PartnerRe Entities and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and on the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from Ernst & Young Ltd., independent chartered accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statement and certain financial information contained in or incorporated by reference into the Time of Sale Prospectus and the Prospectus.
(h) The Underwriters shall have received, on each of the date hereof and on the Closing Date, the following:
(i) a certificate, signed by the Chief Financial Officer of the Company, regarding certain financial information contained or incorporated by reference in the Time of Sale Prospectus, in the form attached hereto as Exhibit C-1; and
(ii) a representation letter, signed by the Chief Financial Officer and the Chief Accounting Officer of the Company, regarding the preparation of certain financial information contained or incorporated by reference in the Time of Sale Prospectus and the Company’s internal control over such financial reporting, in the form attached hereto as Exhibit C-2.
(i) The PartnerRe Entities shall have furnished or caused to be furnished to you such further certificates and documents as you shall have reasonably requested.
6. Covenants of the PartnerRe Entities. In further consideration of the agreements of the Underwriters herein contained, each of the PartnerRe Entities jointly and severally covenants with each Underwriter as follows:
(a) To furnish to you, upon request, without charge, five conformed copies of the Registration Statement and of each amendment thereto, (including financial statements, all exhibits thereto and documents incorporated therein by reference and exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto but including documents incorporated therein by reference) and to furnish to you in New York City and to each Underwriter and dealer, without charge, prior to 10:00 A.M. New York City time on the business day next succeeding the date of this Agreement and from time to time as expeditiously as possible during the period mentioned in paragraph (c) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated therein by reference and exhibits thereto, and any supplements and amendments thereto or to the Registration Statement as originally filed and of each amendment thereto, as you may reasonably request. The PartnerRe Entities consent to the use of the Time of Sale Prospectus and the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Securities Act and with the securities or Blue Sky laws of the jurisdictions in which the Securities are offered by the several Underwriters and by all dealers to whom Securities may be sold, in connection with the offering and sale of the Securities.
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(b) (i) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule, and (ii) during the period mentioned in paragraph (c) or (d) below not to file any information, documents or reports pursuant to the Exchange Act that upon filing becomes a document incorporated by reference in the Registration Statement, without delivering a copy of such information, documents or reports to you, as Representatives of the Underwriters, prior to or concurrently with such filing.
(c) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(d) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the PartnerRe Entities) to which Securities may have been sold by the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with law.
(e) To endeavor to qualify the Securities for offer and sale by the several Underwriters and by dealers under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided, however, that the PartnerRe Entities shall not be obligated to qualify as a foreign corporation or other entity in any jurisdiction in which it is not so qualified or to file a consent to service of process or to file annual reports or to comply with any other requirements in connection with such qualification deemed by the Guarantor to be unduly burdensome.
(f) In the case of the Guarantor, to make generally available to its securityholders as soon as practicable, but in any event not later than fifteen months after the effective date of the Registration Statement (as defined in Rule 158(c)), an earnings statement of the Guarantor and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including at the option of the Guarantor, Rule 158).
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(g) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of obligations under this Agreement, including: (i) the fees, disbursements and expenses of the PartnerRe Entities’ (including local and special counsel) and accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any Issuer Free Writing Prospectus included on Schedule II(A) hereto and any amendments and supplements to any of the foregoing, including all printing or reproduction costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities herein above specified, (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the costs of producing this Agreement, the Indenture, the Guarantee Agreement and any Blue Sky memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(e) hereof, including filing fees and the reasonable fees, expenses and disbursements of counsel for the Underwriters in connection with the Blue Sky memoranda and such qualification, (iv) any filing fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, Inc., (v) any fees charged by rating agencies for the rating of the Securities, (vi) all costs and expenses included in any listing of the Securities on any national securities exchange, (vii) the costs and charges of any Trustee, and any agent of any Trustee and any transfer agent, registrar or depositary in connection with the Indenture and the Securities, (viii) the costs and expenses of the PartnerRe Entities relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the PartnerRe Entities, travel and lodging expenses of the representatives and officers of the PartnerRe Entities and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (ix) all other costs and expenses incident to the performance of the obligations of the PartnerRe Entities hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 below and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(h) To prepare a final term sheet, containing solely a description of the Securities, substantially in the form of Schedule II(A) to this Agreement and approved by the Representatives, and to file such term sheet pursuant to Rule 433(d) under the Securities Act within the time period prescribed by such rule.
(i) To not take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the PartnerRe Entities to facilitate the sale or resale of the Securities.
7. Covenants of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) it has not and will not distribute any free writing prospectus in a manner reasonably designed to lead to its broad unrestricted dissemination, and it will not otherwise be required to file any free writing prospectus with the Commission, in accordance with Rule 433 under the Securities Act, as a result of any action taken or caused to be taken by such Underwriter, unless such action is consented to in advance by the Guarantor;
(b) it has not and will not, without the prior written consent of the Guarantor, use any free writing prospectus that contains the final terms of the Securities unless such terms have previously been included in a free writing prospectus filed with the Commission; provided that Underwriters may use a term sheet substantially in the form of Schedule II(A) hereto without the consent of the Guarantor; and provided further that any Underwriter using such term sheet shall notify the Guarantor, and provide a copy of such term sheet to the Guarantor, prior to, or substantially concurrently with, the first use of such term sheet;
(c) it has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing prospectus (which term includes use of any written information furnished to the Commission by the PartnerRe Entities and not incorporated by reference into the Registration Statement and any press release issued by the PartnerRe Entities) other than (i) one or more term sheets relating to the Securities which are not Issuer Free Writing Prospectuses and which contain preliminary terms of the Securities and related customary information not inconsistent with the final term sheet filed by the PartnerRe Entities pursuant to Section 6(h) hereof, (ii) any Issuer Free Writing Prospectus listed on Schedule II(A) or prepared pursuant to Section 6(h) above or the Investor Presentation, or (iii) any free writing prospectus prepared by such Underwriter and approved by the PartnerRe Entities in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii) an “Underwriter Free Writing Prospectus”); and
(d) any Underwriter Free Writing Prospectus used or referred to by it, complied or will comply in all material respects with the Securities Act.
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8. Indemnity and Contribution.
(a) The PartnerRe Entities agree to, jointly and severally, indemnify and hold harmless each Underwriter, the directors, officers, employees and agents of each Underwriter and each person who controls any Underwriter within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement for the registration of the Securities at the time it became effective or in any amendment thereof, in any preliminary prospectus, the Time of Sale Prospectus, any Issuer Free Writing Prospectus, the Investor Presentation, any PartnerRe Entity information that the PartnerRe Entities have filed or are required to file, pursuant to Rule 433(d) of the Securities Act or in the Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the PartnerRe Entities will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to any PartnerRe Entity by or on behalf of any Underwriter through the Representatives specifically for inclusion therein. This indemnity agreement will be in addition to any liability which the PartnerRe Entities may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the PartnerRe Entities, each of its directors, each of its officers who signs the Registration Statement, and each person who controls each of the PartnerRe Entities within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the PartnerRe Entities to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the PartnerRe Entities by or on behalf of such Underwriter through the Representatives specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The PartnerRe Entities acknowledge that the statements set forth (i) in the last paragraph of the cover page of the Time of Sale Prospectus and the Prospectus regarding delivery of the Securities, (ii) the names of the several underwriters on the front and back cover pages of the Time of Sale Prospectus and the Prospectus and in the Investor Presentation and any Issuer Free Writing Prospectus and (iii) under the heading “Underwriting (Conflicts of Interest)”: (a) the third paragraph related to concessions and reallowances, (b) the seventh and eighth paragraphs related to short sales, purchases to cover short positions and stabilization, (c) the ninth and tenth paragraphs related to the ordinary course activities of the Underwriters and (d) the last sentence of the eleventh paragraph and the twelfth paragraph regarding conflicts of interest constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the preliminary prospectus, the Prospectus, the Investor Presentation or any Issuer Free Writing Prospectus.
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(c) Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure materially prejudices substantial rights or defenses of the indemnifying party and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them, (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the PartnerRe Entities and the Underwriters severally agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, “Losses”) to which the PartnerRe Entities and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the PartnerRe Entities on the one hand and by the Underwriters on the other from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the PartnerRe Entities and the Underwriters severally shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the PartnerRe Entities on the one hand and of the Underwriters on the other in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the PartnerRe Entities shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses) received by them, and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Prospectus. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information provided by the PartnerRe Entities on the one hand or the Underwriters on the other, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The PartnerRe Entities and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph 8(d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 8, each person who controls an Underwriter within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of an Underwriter shall have the same rights to contribution as such Underwriter, and each person who controls each of the PartnerRe Entities within the meaning of either the Securities Act or the Exchange Act, each officer of the PartnerRe Entities who shall have signed the Registration Statement and each director of the PartnerRe Entities shall have the same rights to contribution as the PartnerRe Entities, subject in each case to the applicable terms and conditions of this paragraph 8(d).
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9. Termination. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Guarantor or the Company prior to delivery of and payment for the Securities, if at any time prior to such time (a) (i) trading of any securities of the Guarantor shall have been suspended by the Commission or the New York Stock Exchange, or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred or (iv) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis, and (b) in the case of any of the events specified in clause 9(a)(i) or 9(a)(iv), such event makes it, in the sole judgment of the Representatives, impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated by the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Notes that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of Notes to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Notes set forth opposite their respective names in Schedule I bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting, or in such other proportions as you may specify, to purchase the Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Notes that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amounts of Notes without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Notes and the aggregate principal amount of Notes with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Notes to be purchased, and arrangements satisfactory to you and the PartnerRe Entities for the purchase of such Notes are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the PartnerRe Entities. In any such case either you or the PartnerRe Entities shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the PartnerRe Entities to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the PartnerRe Entities shall be unable to perform their obligations under this Agreement, the PartnerRe Entities will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
12. Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
13. Judicial Proceedings.
(a) The PartnerRe Entities expressly accept and irrevocably submit to the non-exclusive jurisdiction of the United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York, over any suit, action or proceeding arising out of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus, the Indenture, the Guarantee Agreement or the Securities. To the fullest extent it may effectively do so under applicable law, each PartnerRe Entity irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
15
(b) Each PartnerRe Entity agrees, to the fullest extent that it may effectively do so under applicable law, that a judgment in any suit, action or proceeding of the nature referred to in Section 13(a) brought in any such court shall be conclusive and binding upon such PartnerRe Entity, subject to rights of appeal and may be enforced in the courts of the United States of America or the State of New York (or any other court the jurisdiction to which such PartnerRe Entity is or may be subject) by a suit upon such judgment.
(c) Each PartnerRe Entity irrevocably designates and appoints PartnerRe U.S. Corporation, 200 First Stamford Place, Stamford, Connecticut 06902, as its authorized agent, upon whom process may be served in any suit, action or proceeding of the nature referred to in Section 13(a) by mailing a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to the agent with a copy of all such service of process to be delivered to the address of the Guarantor specified in Section 14. Each PartnerRe Entity agrees that such service (i) shall be deemed in every respect effective service of process upon it in every suit, action or proceeding and (ii) shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon and personal delivery to such PartnerRe Entity. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any commercial delivery service.
(d) Nothing in this Section 13 shall affect the right of any Underwriter to serve process in any manner permitted by law, or limit any right to bring proceedings against the PartnerRe Entities in the courts of any jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
14. Notice. Except as otherwise provided herein, notice given pursuant to any provision of this Agreement shall be in writing and shall be delivered (i) if to the Guarantor, at the office of the Guarantor at PartnerRe Ltd., 90 Pitts Bay Road, Pembroke HM 08, Bermuda, Attention: Legal and Compliance; (ii) if to the Company at 200 First Stamford Place, Stamford, Connecticut, 06902, c/o PartnerRe U.S. Corporation; or (iii) if to you, as Representatives of the several Underwriters, to each of (A) Wells Fargo Securities, LLC, 550 South Tryon Street, 5th Floor, Charlotte, North Carolina 28202, Attention: Transaction Management (email: tmgcapitalmarkets@wellsfargo.com), (B) Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, fax no. (646) 834-8133, Attention: Syndicate Registration and (C) BofA Securities, Inc., 1540 Broadway, NY8-540-26-02, New York, New York 10036, fax no. (646) 855-5958, Attention: High Grade Transaction Management/Legal.
15. Trial By Jury. The PartnerRe Entities and the Underwriters hereby irrevocably waive, 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 Agreement or the transactions contemplated hereby.
16. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
17. Survival. The provisions of Sections 6(g), 8 and 19 hereof shall survive the termination or cancellation of this Agreement.
18. No Fiduciary Duty. The PartnerRe Entities hereby acknowledge that (a) the Underwriters are acting as principal and not as an agent or fiduciary of the PartnerRe Entities and (b) their engagement of the Underwriters in connection with the transactions contemplated hereby is as independent contractors and not in any other capacity. Furthermore, the PartnerRe Entities agree that they are solely responsible for making their own judgments in connection with the transactions contemplated hereby (irrespective of whether the Underwriters have advised or are currently advising the PartnerRe Entities on related or other matters).
16
19. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 19, a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
[Signature Page Follows]
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| PARTNERRE FINANCE B LLC, as Issuer | |||
| By: | /s/ Thomas Forsyth | ||
| Name: | Thomas L. Forsyth | ||
| Title: | President & CEO | ||
| PARTNERRE LTD., as Guarantor | |||
| By: | /s/ Lee Iannarone | ||
| Name: | Lee Iannarone | ||
| Title: | Associate General Counsel | ||
[Signature Page to Under Writing Agreement]
| Accepted as of the date hereof. | ||||
| WELLS FARGO SECURITIES, LLC | ||||
| By | /s/ Carolyn Hurley | |||
| Name: | Carolyn Hurley | |||
| Title: | Director | |||
| BARCLAYS CAPITAL INC. | ||||
| By | /s/ Radhika P. Gupte | |||
| Name: | Radhika P. Gupte | |||
| Title: | Managing Director | |||
| BOFA SECURITIES, INC. | ||||
| By | /s/ Randolph B. Randolph | |||
| Name: | Randolph B. Randolph | |||
| Title: | Managing Director | |||
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto
[Signature Page to Under Writing Agreement]
SCHEDULE I
| Underwriter | Principal Amount of Notes To Be Purchased | |||
| Wells Fargo Securities, LLC | $ | 150,000,000 | ||
| Barclays Capital Inc. | $ | 150,000,000 | ||
| BofA Securities, Inc. | $ | 150,000,000 | ||
| BMO Capital Markets Corp. | $ | 12,500,000 | ||
| Citigroup Global Markets Inc. | $ | 12,500,000 | ||
| Credit Suisse Securities (USA) LLC | $ | 12,500,000 | ||
| nabSecurities, LLC | $ | 12,500,000 | ||
| Total | $ | 500,000,000 | ||
SCHEDULE II(A)
| 1. | Pricing Term Sheet, dated September 17, 2020. |
SCHEDULE II(B)
| 1. | Electronic roadshow, dated September 2020. |
Exhibit 4.1
EXECUTION VERSION
|
PARTNERRE FINANCE B LLC, Issuer
| ||
|
INDENTURE
Dated as of September 22, 2020
SUBORDINATED DEBT SECURITIES |
||
Reconciliation and tie between
Trust Indenture Act of 1939 (the “Trust Indenture Act”)
and Indenture
| Trust Indenture Act Section | Indenture Section | |
| (§)(§)310(a)(1) | 6.07 | |
| (a)(2) | 6.07 | |
| (b) | 6.08 | |
| (§)(§)312(a) | 7.01 | |
| (b) | 7.02 | |
| (c) | 7.02 | |
| (§)(§)313(a) | 7.03 | |
| (b)(2) | 7.03 | |
| (c) | 7.03 | |
| (d) | 7.03 | |
| (§)(§)314(a) | 7.04 | |
| (c)(1) | 1.02 | |
| (c)(2) | 1.02 | |
| (e) | 1.02 | |
| (f) | 1.02 | |
| (§)(§)316(a) (last sentence) | 1.01 | |
| (a)(1)(A) | 5.02, 5.12 | |
| (a)(1)(B) | 5.13 | |
| (b) | 5.08 | |
| (§)(§)317(a)(1) | 5.03 | |
| (a)(2) | 5.04 | |
| (b) | 10.03 | |
| (§)318(a) | 1.08 |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
TABLE OF CONTENTS
| Page | |||
| ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|||
| Section 1.01. | Definitions | 1 | |
| Section 1.02. | Compliance Certificates and Opinions | 12 | |
| Section 1.03. | Form of Documents Delivered to Trustee | 12 | |
| Section 1.04. | Acts of Holders | 13 | |
| Section 1.05. | Notices, etc. | 15 | |
| Section 1.06. | Notice to Holders of Securities; Waiver | 15 | |
| Section 1.07. | Language of Notices | 16 | |
| Section 1.08. | Conflict with Trust Indenture Act | 16 | |
| Section 1.09. | Effect of Headings and Table of Contents | 16 | |
| Section 1.10. | Successors and Assigns | 16 | |
| Section 1.11. | Separability Clause | 16 | |
| Section 1.12. | Benefits of Indenture | 16 | |
| Section 1.13. | Governing Law | 17 | |
| Section 1.14. | Non-Business Days | 17 | |
| Section 1.15. | Counterparts | 17 | |
| Section 1.16. | Judgment Currency | 17 | |
| Section 1.17. | No Security Interest Created | 18 | |
| Section 1.18. | Limitation on Individual Liability | 18 | |
| Section 1.19. | Submission to Jurisdiction | 18 | |
| Section 1.20. | Waiver of Jury Trial | 19 | |
| Section 1.21. | Force Majeure | 19 | |
| ARTICLE 2 SECURITIES FORMS |
|||
| Section 2.01. | Forms Generally | 19 | |
| Section 2.02. | Form of Trustee’s Certificate of Authentication | 20 | |
| Section 2.03. | Securities in Global Form | 20 | |
| ARTICLE 3 THE SECURITIES |
|||
| Section 3.01. | Amount Unlimited; Issuable in Series | 21 | |
| Section 3.02. | Currency; Denominations | 25 | |
| Section 3.03. | Execution, Authentication, Delivery and Dating | 25 | |
| Section 3.04. | Temporary Securities | 26 | |
| Section 3.05. | Registration, Transfer and Exchange | 27 | |
| Section 3.06. | Mutilated, Destroyed, Lost and Stolen Securities | 30 | |
| Section 3.07. | Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved | 31 | |
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| Section 3.08. | Persons Deemed Owners | 33 |
| Section 3.09. | Cancellation | 33 |
| Section 3.10. | Computation of Interest | 34 |
| Section 3.11. | CUSIP Numbers | 34 |
| ARTICLE 4 SATISFACTION AND DISCHARGE OF INDENTURE |
||
| Section 4.01. | Satisfaction and Discharge | 34 |
| Section 4.02. | Defeasance and Covenant Defeasance | 36 |
| Section 4.03. | Application of Trust Money | 40 |
| Section 4.04. | Reinstatement | 40 |
| ARTICLE 5 REMEDIES |
||
| Section 5.01. | Events of Default | 40 |
| Section 5.02. | Acceleration of Maturity; Rescission and Annulment | 42 |
| Section 5.03. | Collection of Indebtedness and Suits for Enforcement by Trustee | 43 |
| Section 5.04. | Trustee May File Proofs of Claim | 44 |
| Section 5.05. | Trustee May Enforce Claims Without Possession of Securities or Coupons | 45 |
| Section 5.06. | Application of Money Collected | 45 |
| Section 5.07. | Limitations on Suits | 46 |
| Section 5.08. | Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts | 46 |
| Section 5.09. | Restoration of Rights and Remedies | 47 |
| Section 5.10. | Rights and Remedies Cumulative | 47 |
| Section 5.11. | Delay or Omission Not Waiver | 47 |
| Section 5.12. | Control by Holders of Securities | 47 |
| Section 5.13. | Waiver of Past Defaults | 47 |
| Section 5.14. | Waiver of Usury, Stay or Extension Laws | 48 |
| Section 5.15. | Undertaking for Costs | 48 |
| ARTICLE 6 THE TRUSTEE |
||
| Section 6.01. | Certain Rights of Trustee | 48 |
| Section 6.02. | Notice of Defaults | 51 |
| Section 6.03. | Not Responsible for Recitals or Issuance of Securities | 51 |
| Section 6.04. | May Hold Securities | 51 |
| Section 6.05. | Money Held in Trust | 51 |
| Section 6.06. | Compensation, Reimbursement and Indemnification | 51 |
| Section 6.07. | Corporate Trustee Required; Eligibility | 52 |
| Section 6.08. | Resignation and Removal; Appointment of Successor | 52 |
| Section 6.09. | Acceptance of Appointment by Successor | 54 |
| Section 6.10. | Merger, Conversion, Consolidation or Succession to Business | 55 |
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| Section 6.11. | Appointment of Authenticating Agent | 56 |
| ARTICLE 7 HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY |
||
| Section 7.01. | Company to Furnish Trustee Names and Addresses of Holders | 57 |
| Section 7.02. | Preservation of Information; Communications to Holders | 58 |
| Section 7.03. | Reports by Trustee | 58 |
| Section 7.04. | Reports by Company | 58 |
| ARTICLE 8 CONSOLIDATION, AMALGAMATIONS, MERGER AND SALES |
||
| Section 8.01. | Company May Consolidate, Etc., Only on Certain Terms | 59 |
| Section 8.02. | Successor Person Substituted for Company | 59 |
| Section 8.03. | Guarantor May Consolidate, Etc., Only on Certain Terms | 60 |
| Section 8.04. | Successor Person Substituted for Guarantor | 61 |
| ARTICLE 9 SUPPLEMENTAL INDENTURES |
||
| Section 9.01. | Supplemental Indentures Without Consent of Holders | 61 |
| Section 9.02. | Supplemental Indentures with Consent of Holders | 62 |
| Section 9.03. | Execution of Supplemental Indentures | 63 |
| Section 9.04. | Effect of Supplemental Indentures | 63 |
| Section 9.05. | Reference in Securities to Supplemental Indentures | 64 |
| Section 9.06. | Conformity with Trust Indenture Act | 64 |
| Section 9.07. | Effect on Senior Indebtedness | 64 |
| Section 9.08. | Notice of Supplemental Indenture | 64 |
| ARTICLE 10 COVENANTS |
||
| Section 10.01. | Payment of Principal, any Premium, Interest and Additional Amounts | 64 |
| Section 10.02. | Maintenance of Office or Agency | 64 |
| Section 10.03. | Money for Securities Payments to Be Held in Trust | 66 |
| Section 10.04. | [Reserved] | 67 |
| Section 10.05. | [Reserved] | 67 |
| Section 10.06. | [Reserved] | 67 |
| Section 10.07. | Company and Guarantor’s Statement as to Compliance; Notice of Certain Defaults | 67 |
| Section 10.08. | Calculation of Original Issue Discount | 68 |
| ARTICLE 11 REDEMPTION OF SECURITIES |
||
| Section 11.01. | Applicability of Article | 68 |
| Section 11.02. | Election to Redeem; Notice to Trustee | 68 |
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| Section 11.03. | Selection by Trustee of Securities to Be Redeemed | 68 |
| Section 11.04. | Notice of Redemption | 69 |
| Section 11.05. | Deposit of Redemption Price | 70 |
| Section 11.06. | Securities Payable on Redemption Date | 71 |
| Section 11.07. | Securities Redeemed in Part | 71 |
| ARTICLE 12 SINKING FUNDS |
||
| Section 12.01. | Applicability of Article | 72 |
| Section 12.02. | Satisfaction of Sinking Fund Payments with Securities | 72 |
| Section 12.03. | Redemption of Securities for Sinking Fund | 73 |
| ARTICLE 13 REPAYMENT AT THE OPTION OF HOLDERS |
||
| Section 13.01. | Applicability of Article | 73 |
| ARTICLE 14 SECURITIES IN FOREIGN CURRENCIES |
||
| Section 14.01. | Applicability of Article | 73 |
| ARTICLE 15 MEETINGS OF HOLDERS OF SECURITIES |
||
| Section 15.01. | Purposes for Which Meetings May Be Called | 74 |
| Section 15.02. | Call, Notice and Place of Meetings | 74 |
| Section 15.03. | Persons Entitled to Vote at Meetings | 74 |
| Section 15.04. | Quorum; Action | 75 |
| Section 15.05. | Determination of Voting Rights; Conduct and Adjournment of Meetings | 75 |
| Section 15.06. | Counting Votes and Recording Action of Meetings | 76 |
| ARTICLE 16 SUBORDINATION OF SECURITIES |
||
| Section 16.01. | Agreement to Subordinate | 76 |
| Section 16.02. | Default on Senior Indebtedness | 77 |
| Section 16.03. | Liquidation; Dissolution; Bankruptcy | 78 |
| Section 16.04. | Subrogation | 79 |
| Section 16.05. | Trustee to Effectuate Subordination | 79 |
| Section 16.06. | Notice by the Company | 80 |
| Section 16.07. | Rights of the Trustee; Holders of Senior Indebtedness | 81 |
| Section 16.08. | Subordination May Not Be Impaired | 81 |
| Section 16.09. | Application by Trustee of Assets Deposited With It | 82 |
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| ARTICLE 17 GUARANTEE |
||
| Section 17.01. | The Guarantee | 82 |
| Section 17.02. | Ranking | 82 |
v
INDENTURE, dated as of September 22, 2020 (the “Indenture”), among PARTNERRE FINANCE B LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (hereinafter called the “Company”), having its principal executive office located at 200 First Stamford Place, Stamford, Connecticut 06902, PARTNERRE LTD., a company duly organized and existing under the laws of Bermuda (hereinafter called the “Guarantor”), having its principal executive office located at 90 Pitts Bay Road, Pembroke HM 08, Bermuda, and The Bank of New York Mellon, a New York banking corporation (hereinafter called the “Trustee”), having its Corporate Trust Office located at 240 Greenwich Street, New York, New York 10286.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its subordinated unsecured debentures, notes or other evidences of unsecured subordinated indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this Indenture. All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
For value received, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Guarantee and the indemnity provided for herein. All things necessary to make this Indenture a valid agreement of the Guarantor, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that are required to be part of this Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof and any Coupons (as herein defined) as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. Except as otherwise expressly provided in or pursuant to this Indenture, or unless the context otherwise requires, for all purposes of this Indenture:
(a) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America and, except as otherwise herein expressly provided, the terms “generally accepted accounting principles” or “GAAP” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date or time of such computation;
(d) the words “herein,” “hereof,” “hereto” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; and
(e) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both,” not “either A or B but not both”).
Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act,” when used with respect to any Holders, has the meaning specified in Section 1.04.
“Additional Amounts” means any additional amounts which are required by any Security, under circumstances specified in the terms of such Security, to be paid by the Company or the Guarantor in respect of certain taxes, assessments or other governmental charges imposed on Holders specified 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. For the purposes 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 the meanings correlative to the foregoing.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.11 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper, in an official language of the place of publication or in the English language, customarily published on each day that is a Business Day in the place of publication, whether or not published on days that are not Business Days in the place of publication, and of general circulation in each place in connection with which the term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any day that is a Business Day in the place of publication.
“Authorized Officer” means, when used with respect to the Company, 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 the Company.
2
“Bearer Security” means any Security in the form established pursuant to Section 2.01 which is payable to bearer.
“Board of Directors” means either the board of directors of the Company or the Guarantor, as applicable, or any committee of such board of directors duly authorized to act on behalf of the Company or the Guarantor, as applicable, or if the Company does not have a board of directors, the board of directors (or any duly authorized committee thereof) of the Company’s direct or indirect manager or managing member.
“Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of the Company (or its sole member) or the Guarantor, as applicable, to have been duly adopted by the Board of Directors or the Guarantor’s Board of Directors, as the case may be, and to be in full force and effect on the date of such certification, delivered to the Trustee.
“Business Day,” with respect to any Place of Payment or other location, means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment or other location are authorized or obligated by law, regulation or executive order to close.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including Preferred Stock, but excluding any debt securities convertible into such equity.
“Capitalized Lease Obligation” 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.
“Code” means the Internal Revenue Code of 1986, as amended.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Stock” in respect of any Corporation means Capital Stock of any class or classes (however designated) which has no preference as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Corporation, and which is not subject to redemption by such Corporation.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the Securities.
3
“Company Request” and “Company Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Company by an Authorized Officer, and delivered to the Trustee.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or (ii) any currency unit or composite currency for the purposes for which it was established.
“Corporate Trust Office” means the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at The Bank of New York Mellon, 240 Greenwich Street, New York, New York 10286, Attention: Corporate Trust Administration or at any other time at such other address as the Trustee may designate from time to time by notice to the parties hereto or at the principal corporate trust office of any successor trustee as to which such successor trustee may notify the parties hereto in writing.
“Corporation” includes corporations, limited liability companies, incorporated associations, companies and business trusts.
“Coupon” means any interest coupon appertaining to a Bearer Security.
“Currency,” with respect to any payment, deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.
“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s Ratings Service, CUSIP Service Bureau, or any successor thereto.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
“Event of Default” has the meaning specified in Section 5.01.
“Foreign Currency” means any currency, currency unit or composite currency, including, without limitation, the euro, issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.
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“Government Obligations” means securities which are (i) direct obligations of the United States of America or the other government or governments or confederation or association of governments which issued the Foreign Currency in which the principal of or any premium or interest on such Security or any Additional Amounts in respect thereof shall be payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or confederation or association of governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or governments or confederation or association of governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments or confederation or association of governments, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.
“Guarantee” means the unconditional guarantee of the payment of the principal of, any premium or interest on, and any Additional Amounts with respect to the Securities by the Guarantor, as more fully set forth in the Subordinated Debt Securities Guarantee Agreement.
“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
“Guarantor’s Board of Directors” means the board of directors of the Guarantor or any committee of that board duly authorized to act generally or in any particular respect for the Guarantor hereunder.
“Guarantor’s Officer’s Certificate” means a certificate signed by the Chairman of the Guarantor’s Board of Directors, a Vice Chairman, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Chief Legal Counsel, the Secretary or the Assistant Secretary of the Guarantor, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Guarantor Request” means a written request signed in the name of the Guarantor by the Chairman of the Guarantor’s Board of Directors, a Vice Chairman, the Chief Executive Officer, the Chief Financial Officer, the Chief Accounting Officer, the Chief Legal Counsel, the Secretary or the Assistant Secretary of the Guarantor, and delivered to the Trustee.
“Holder,” in the case of any Registered Security, means the Person in whose name such Security is registered in the Security Register and, in the case of any Bearer Security, means the bearer thereof and, in the case of any Coupon, means the bearer thereof.
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“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, the amount thereof being deemed to be the lesser of the stated recourse, if limited, and the amount of the obligation or dividends of the other Person, (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” means this instrument as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security and any Coupon appertaining thereto established pursuant to Section 3.01 (as such terms and provisions may be amended pursuant to the applicable provisions hereof).
“Independent Public Accountants” means accountants or a firm of accountants that, with respect to the Company, the Guarantor and any other obligor under the Securities or the Coupons, are independent public accountants within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder, who may be the independent public accountants regularly retained by the Company or the Guarantor or who may be other independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal matters relating to this Indenture or certificates required to be provided hereunder.
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity or upon acceleration pursuant to Section 5.02 may be more or less than the principal face amount thereof at original issuance.
“interest,” on the Security of any series (i) with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity and (ii) when used with respect to a Security which provides for the payment of Additional Amounts pursuant to the terms of such Security, includes such Additional Amounts.
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“Interest Payment Date,” with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 1.16.
“Local Business Day” has the meaning specified in Section 4.02(e).
“Maturity,” with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture or the related Series Authorization, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or repurchase, notice of option to elect repayment or otherwise, and includes any Redemption Date and the date of any required repurchase or repayment.
“New York Banking Day” has the meaning specified in Section 1.16.
“Office” or “Agency,” with respect to any Securities, means an office or agency of the Company maintained or designated as a Place of Payment for such Securities pursuant to Section 10.02 or any other office or agency of the Company maintained or designated for such Securities pursuant to Section 10.02 or, to the extent designated or required by Section 10.02 in lieu of such office or agency, the Corporate Trust Office of the Trustee.
“Officers’ Certificate” means a certificate signed by two Authorized Officers, at least one of which is a principal executive, principal financial or principal accounting officer, that complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company or other counsel, that, if required by the Trust Indenture Act, complies with the requirements of Section 314(e) of the Trust Indenture Act.
“Original Issue Discount Security” means a Security issued pursuant to this Indenture or the related Series Authorization which provides for declaration of an amount less than the principal face amount thereof to be due and payable upon acceleration pursuant to Section 5.02.
“Outstanding,” when used with respect to any Securities, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof money in the necessary amount has been theretofore deposited pursuant hereto (other than pursuant to Section 4.02) with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own, or authorize the Guarantor to act as, Paying Agent) for the Holders of such Securities and any Coupons appertaining thereto, provided, that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
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(c) any such Security with respect to which the Company or the Guarantor has effected defeasance pursuant to the terms hereof, except to the extent provided in Section 4.02;
(d) any such Security which has been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a protected purchaser in whose hands such Security is a valid obligation of the Company; and
(e) any such Security converted or exchanged as contemplated by this Indenture into Common Stock of the Company or other securities of the Guarantor or another issuer, if the terms of such Security provide for such conversion or exchange pursuant to Section 3.01;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purposes shall be equal to the principal amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, and (ii) the principal amount of a Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the then current principal amount) of such Security, unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, and (iii) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee (A) the pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Coupons appertaining thereto or an Affiliate of the Company, the Guarantor or such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security or any Coupon on behalf of the Company.
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“Person” means any individual, Corporation, partnership, joint venture, joint-stock company, limited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” with respect to any Security, means the place or places where the principal of, or any premium or interest on, or any Additional Amounts with respect to such Security are payable as provided in or pursuant to this Indenture or the related Series Authorization.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same Indebtedness as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security or any Security to which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen Security or the Security to which a mutilated, destroyed, lost or stolen Coupon appertains.
“Preferred Stock” in respect of any Corporation means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Corporation, over shares of Capital Stock of any other class of such Corporation.
“principal” means, as of any date of determination with respect to the Securities of any series, (i) in the case of an Original Issue Discount Security or an Indexed Security, the amount due and payable with respect to principal upon an acceleration thereof pursuant to Section 5.02 at such time and (ii) in all other cases, par or the stated face amount of the related Security.
“Redemption Date,” with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or the related Series Authorization.
“Redemption Price,” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or the related Series Authorization, exclusive of accrued interest and any Additional Amounts with respect to accrued interest.
“Registered Security” means any Security established pursuant to Section 2.01 which is registered in a Security Register.
“Regular Record Date” for the interest payable on any Registered Security on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or the related Series Authorization as the “Regular Record Date”.
“Required Currency” has the meaning specified in Section 1.16.
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“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the 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 Indenture.
“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of Indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee under this Indenture, “Securities,” with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Senior Indebtedness” means, with respect to the Securities of any particular series, all the principal of and premium, if any, and interest on (1) all Indebtedness of the Company, whether outstanding on the date of this Indenture or thereafter created, (a) for money borrowed by the Company (other than obligations pursuant to this Indenture in respect of the Securities of such series), (b) in respect of letters of credit and acceptances issued or made by banks in favor of the Company, or (c) constituting purchase money indebtedness, or Indebtedness secured by property included in the property, plant and equipment accounts of the Company, at the time of the acquisition of such property for the payment of which the Company is directly liable, and (2) all deferrals, renewals, extensions and refundings of, and amendments, modifications and supplements to, any such Indebtedness. As used in the preceding sentence the term “purchase money indebtedness” means Indebtedness evidenced by a note, debenture, bond or other instrument (whether or not secured by any lien or other security interest) issued or assumed as all or a part of the consideration for the acquisition of property, whether by purchase, merger, consolidation or otherwise. Notwithstanding anything to the contrary in this Indenture or the Securities of any particular series, Senior Indebtedness shall not, with respect to that series of Securities, include any Indebtedness of the Company, which, by its terms or the terms of the instrument creating or evidencing it, is subordinate in right of payment to or pari passu with the Securities of that series.
“Series Authorization” means, with respect to any series or class of Securities, (i) a Board Resolution and Officers’ Certificate or (ii) one or more indentures supplemental hereto, establishing such series or class of Securities and setting forth the terms thereof, including, in either case, a form of note or notes representing such Securities.
“Special Record Date” for the payment of any Defaulted Interest on any Registered Security means a date fixed by the Company pursuant to Section 3.07.
“Stated Maturity,” with respect to any Security or any installment of principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or the related Series Authorization as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.
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“Subsidiary” means, in respect of any Person, any Corporation, limited or general partnership or other business entity of which at the time of determination more than 50% of the voting power of the shares of its Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“Subordinated Debt Securities Guarantee Agreement” means the Subordinated Debt Securities Guarantee Agreement attached hereto as Exhibit A.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or provision, as the case may be, as amended or replaced from time to time or as supplemented from time to time by rules or regulations adopted by the Commission under or in furtherance of the purposes of such Act or provision, as the case may be.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.
“United States,” except as otherwise provided in or pursuant to this Indenture or any Series Authorization, means the United States of America (including the states thereof and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as U.S. Depository or Depository by the Company in or pursuant to this Indenture or the related Series Authorization, which Person must be, to the extent required by applicable law or regulation, a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, if so provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “U.S. Depository” or “Depository” shall mean, with respect to any Securities, the qualifying entity which has been appointed with respect to such Securities.
“Vice President,” when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title “Vice President.”
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Section 1.02. Compliance Certificates and Opinions. Except as otherwise expressly provided in this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, such action is authorized or permitted by this Indenture and that all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.
Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, provided that such officer, after reasonable inquiry, has no reason to believe and does not believe that the Opinion of Counsel with respect to the matters upon which his or her certificate or opinion is based is erroneous. Any such Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as the case may be, provided that such counsel, after reasonable inquiry, has no reason to believe and does not believe that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
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Section 1.04. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. If, but only if, Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided in or pursuant to this Indenture or the related Series Authorization to be given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article 15, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are received by a Responsible Officer of the Trustee and, where it is hereby expressly required, to the Company or the Guarantor. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Company, the Guarantor and any agent of the Trustee, the Company or the Guarantor, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 15.06.
(b) Without limiting the generality of this Section 1.04, unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, a Holder, including a U.S. Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the related Series Authorization to be made, given or taken by Holders, and a U.S. Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such U.S. Depository’s standing instructions and customary practices.
(c) The Company shall fix a record date for the purpose of determining the Persons who are beneficial owners of interest in any permanent global Security held by a U.S. Depository entitled under the procedures of such U.S. Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the related Series Authorization to be made, given or taken by Holders. If such a record date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other Act, whether or not such Holders remain Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other Act shall be valid or effective if made, given or taken more than 90 days after such record date.
(d) The fact and date of the execution by any Person of any such instrument or writing referred to in this Section 1.04 may be proved in any reasonable manner; and the Trustee may in any instance require further proof, including written proof, with respect to any of the matters referred to in this Section.
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(e) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register.
(f) The ownership, principal amount and serial numbers of Bearer Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, may be proved by the production of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary reasonably acceptable to the Company, wherever situated, if such certificate shall be deemed by the Company and the Trustee to be satisfactory, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues until (i) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (ii) such Bearer Security is produced to the Trustee by some other Person, or (iii) such Bearer Security is surrendered in exchange for a Registered Security, or (iv) such Bearer Security is no longer Outstanding. The ownership, principal amount and serial numbers of Bearer Securities held by the Person so executing such instrument or writing and the date of the commencement and the date of the termination of holding the same may also be proved in any other manner which the Company and the Trustee deem sufficient.
(g) If the Company shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may at its option (but is not obligated to), by Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(h) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such Act is made upon such Security.
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Section 1.05. Notices, etc. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to the attention of its Treasurer, with a copy to the attention of its General Counsel, at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
The Trustee agrees to accept and act upon instructions or directions pursuant to the Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the Company, the Guarantor or any Holder elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding if such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 1.06. Notice to Holders of Securities; Waiver. Except as otherwise expressly provided in or pursuant to this Indenture or the related Series Authorization, where this Indenture provides for notice to Holders of Securities of any event,
(a) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at such Holder’s address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice; and
(b) such notice shall be sufficiently given to Holders of Bearer Securities, if any, if published in an Authorized Newspaper in The City of New York and, if such Securities are then listed on any stock exchange outside the United States, in an Authorized Newspaper in such city as the Company shall advise the Trustee in writing that such stock exchange so requires, on a Business Day at least twice, the first such publication to be not earlier than the earliest date and the second such publication not later than the latest date prescribed for the giving of such notice.
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In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification to Holders of Bearer Securities as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed in writing with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.07. Language of Notices. Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication.
Section 1.08. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with any duties under any required provision of the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required provision shall control.
Section 1.09. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.11. Separability Clause. In case any provision in this Indenture, any Security or any Coupon shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture. Nothing in this Indenture, any Security or any Coupon, express or implied, shall give to any Person, other than the parties hereto and holders of Senior Indebtedness, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities or Coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
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Section 1.13. Governing Law. This Indenture, the Securities and any Coupons shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made or instruments entered into and, in each case, performed in said state.
Section 1.14. Non-Business Days. Unless otherwise specified in or pursuant to this Indenture or the related Series Authorization, in any case where any Interest Payment Date, Stated Maturity or Maturity of any Security, or the last date on which a Holder has the right to convert or exchange Securities of a series that are convertible or exchangeable, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture, any Security or any Coupon other than a provision in any Security or Coupon that specifically states that such provision shall apply in lieu hereof) payment need not be made at such Place of Payment on such date, and such Securities need not be converted or exchanged on such date but such payment may be made, and such Securities may be converted or exchanged, on the next succeeding day that is a Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or at the Stated Maturity or Maturity or on such last day for conversion or exchange, and no interest shall accrue on the amount payable on such date or at such time for the period from and after such Interest Payment Date, Stated Maturity, Maturity or last day for conversion or exchange, as the case may be, to such next succeeding Business Day.
Section 1.15. Counterparts. This Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
Section 1.16. Judgment Currency. The Company 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 the principal of, or premium or interest, if any, or Additional Amounts, if any, on the Securities of any series (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 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 Indenture 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 Indenture. 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.
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Section 1.17. No Security Interest Created. Nothing in this Indenture or in any Securities, express or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect in any jurisdiction where property of the Company or its Subsidiaries is or may be located.
Section 1.18. Limitation on Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, shareholder, officer or director, as such, past, present or future, of the Company, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, shareholders, members, officers or directors, as such, of the Company, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom; and that any and all such personal liability of every name and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, shareholder, member, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any Security or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Security.
Section 1.19. Submission to Jurisdiction. The Company agrees that any judicial proceedings instituted in relation to any matter arising under this Indenture, the Securities or any Coupons appertaining thereto 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 Indenture, the Company 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 Company also irrevocably and unconditionally waives for the benefit of the Trustee and the Holders of the Securities and Coupons 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 Indenture. The Company hereby irrevocably designates and appoints, for the benefit of the Trustee and the Holders of the Securities and Coupons for the term of this Indenture, PartnerRe U.S. Corporation, 200 First Stamford Place, Stamford, Connecticut 06902, 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 the Company pursuant to Section 1.05, and to Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Scott Miller) 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 Company to be effective and binding service on it in every respect whether or not the Company 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 Coupons or the obligations of the Company hereunder remain outstanding, or until the appointment of a successor by the Company located in New York or Connecticut and such successor’s acceptance of such appointment. Upon such acceptance, the Company shall notify the Trustee in writing of the name and address of such successor. The Company further agrees for the benefit of the Trustee and the Holders of the Securities and the Coupons 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 PartnerRe U.S. Corporation as its agent in full force and effect so long as any of the Securities or Coupons or the obligations of the Company hereunder shall be outstanding. The Trustee shall not be obligated and shall have no responsibility with respect to any failure by the Company 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 Trustee or any Holder to institute proceedings against the Company in the courts of any other jurisdiction or jurisdictions.
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Section 1.20. Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTOR, THE TRUSTEE AND EACH HOLDER OF A SECURITY BY ITS ACCEPTANCE THEREOF 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 INDENTURE.
Section 1.21. Force Majeure. In no event shall the 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, epidemics, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the 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.
ARTICLE 2
Securities Forms
Section 2.01. Forms Generally. Each Registered Security, Bearer Security, Coupon and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to the related Series Authorization, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or the related Series Authorization or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Security or Coupon as evidenced by their execution of such Security or Coupon.
Unless otherwise provided in or pursuant to the related Series Authorization, the Securities shall be issuable in registered form without Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities or Coupons, as evidenced by their execution of such Securities or Coupons.
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Section 2.02. Form of Trustee’s Certificate of Authentication. Subject to Section 6.11, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON, | |||
| as Trustee | |||
| By: | |||
| Authorized Officer | |||
| Dated: | |||
Section 2.03. Securities in Global Form. Unless otherwise provided in or pursuant to the related Series Authorization, the Securities of a series shall not be issuable in temporary or permanent global form. If Securities of a series shall be issuable in global form, any such Security may provide that it or any number of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to Section 3.03 or Section 3.04 with respect thereto. Subject to the provisions of Section 3.03 and, if applicable, Section 3.04, the Trustee shall deliver and redeliver, in each case at the Company’s expense, any Security in permanent global form in the manner and upon written instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to Section 3.03 or Section 3.04 has been, or simultaneously is, delivered, any instructions by the Company with respect to a Security in global form shall be in writing and, with respect to matters set forth in this Section 2.03, need not be accompanied by or contained in an Officers’ Certificate and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 3.07, unless otherwise specified in or pursuant to the related Series Authorization, payment of principal of, any premium and interest on, and any Additional Amounts in respect of, any Security in temporary or permanent global form shall be made to the Person or Persons specified therein.
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Notwithstanding the provisions of Section 3.08 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company or the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a global Security (i) in the case of a global Security in registered form, the Holder of such global Security in registered form, or (ii) in the case of a global Security in bearer form, the Person or Persons specified pursuant to Section 3.01.
ARTICLE 3
The Securities
Section 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series. The Securities of each series shall be subordinated in right of payment to all Senior Indebtedness with respect to such series as provided in Article 16.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in the related Series Authorization, the following:
(a) the title of such Securities and the series in which such Securities shall be included;
(b) any limit upon the aggregate principal amount of the Securities of such title or the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 3.04, Section 3.05, Section 3.06, Section 9.05 or Section 11.07, upon repayment in part of any Registered Security of such series pursuant to Article 13, upon surrender in part of any Registered Security for conversion into Common Stock of the Company or exchange for other securities pursuant to its terms, or pursuant to or as contemplated by the terms of such Securities);
(c) if such Securities are to be issuable as Registered Securities, as Bearer Securities or alternatively as Bearer Securities and Registered Securities, and whether the Bearer Securities are to be issuable with Coupons, without Coupons or both, and any restrictions applicable to the offer, sale or delivery of the Bearer Securities and the terms, if any, upon which Bearer Securities may be exchanged for Registered Securities and vice versa;
(d) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for definitive Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 3.05, and (iii) the name of the Depository or the U.S. Depository, as the case may be, with respect to any such global Security;
(e) if any of such Securities are to be issuable as Bearer Securities or in global form, the date as of which any such Bearer Security or global Security shall be dated (if other than the date of original issuance of the first of such Securities to be issued);
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(f) if any of such Securities are to be issuable as Bearer Securities, whether interest in respect of any portion of a temporary Bearer Security in global form payable in respect of an Interest Payment Date therefor prior to the exchange, if any, of such temporary Bearer Security for definitive Securities shall be paid to any clearing organization with respect to the portion of such temporary Bearer Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date;
(g) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable;
(h) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable on a cash basis and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(i) if in addition to or other than the Borough of Manhattan, The City of New York, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities that are Registered Securities may be surrendered for registration of transfer or exchange, any of such Securities may be surrendered for conversion or exchange and notices or demands to or upon the Company in respect of such Securities and this Indenture may be served, the extent to which, or the manner in which, any interest payment or Additional Amounts on a global Security on an Interest Payment Date, will be paid and the manner in which any principal of or premium, if any, on any global Security will be paid;
(j) whether any of such Securities are to be redeemable at the option of the Company and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Company;
(k) whether the Company is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;
(l) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than denominations of $2,000 and integral multiples of $1,000 in excess thereof, and the denominations in which any of such Securities that are Bearer Securities shall be issuable if other than the denomination of $5,000;
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(m) whether the Securities of the series will be convertible into and/or exchangeable for other securities, whether or not issued by the Company, and, if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;
(n) if other than the principal face amount thereof, the portion of the par or stated face amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such portion is to be determined or, in the case of Indexed Securities, the portion of the principal face amount that shall be payable upon Stated Maturity or the method by which such portion is to be determined;
(o) if other than Dollars, the Foreign Currency in which payment of the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities shall be payable;
(p) if the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities are to be payable, at the election of the Company or a Holder thereof or otherwise, in Dollars or in a Foreign Currency other than that in which such Securities are stated to be payable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and the Currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Company or a Holder thereof or otherwise, in a Foreign Currency;
(q) whether the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more Currencies, commodities, equity securities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;
(r) the relative degree, if any, to which Securities of such series and the guarantee in respect thereof shall be senior to or be subordinated to other series of Securities and the guarantee in respect thereof or other Indebtedness of the Company in right of payment, whether such other series of Securities or other Indebtedness is outstanding or not;
(s) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to any of such Securities, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(t) whether either or both of Section 4.02(b) relating to defeasance or Section 4.02(c) relating to covenant defeasance shall not be applicable to the Securities of such series, or any covenants in addition to those specified in Section 4.02(c) relating to the Securities of such series which shall be subject to covenant defeasance, and any deletions from, or modifications or additions to, the provisions of Article 4 in respect of the Securities of such series;
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(u) the form or forms of the Subordinated Debt Securities Guarantee Agreement, if different from the Subordinated Debt Securities Guarantee Agreement contemplated hereby and defined herein;
(v) whether any of such Securities are to be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and delivered;
(w) if any of such Securities are to be issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
(x) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;
(y) any modifications, including additions to or exclusions from, the definition of Senior Indebtedness; and
(z) any other terms of such Securities and any other deletions from or modifications or additions to this Indenture in respect of such Securities.
If any terms or provisions set forth in the related Series Authorization pursuant to this Section 3.01 conflict or are otherwise inconsistent with other terms or provisions set forth in this Indenture (regardless of whether this Indenture otherwise provides that such other terms or provisions are subject to the provisions of the related Series Authorization), the terms and provisions of the related Series Authorization shall control.
All Securities of any one series and all Coupons, if any, appertaining to Bearer Securities of such series shall be substantially identical except as to Currency of payments due thereunder, denomination and the rate of interest thereon, or method of determining the rate of interest, if any, Maturity, and the date from which interest, if any, shall accrue and except as may otherwise be provided by the Company in or pursuant to the Board Resolution and set forth in the Officers’ Certificate or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon written order of persons designated in the Officers’ Certificate or supplemental indenture and that such persons are authorized to determine, consistent with such Officers’ Certificate or any applicable supplemental indenture, such terms and conditions of the Securities of such series as are specified in such Officers’ Certificate or supplemental indenture. All Securities of any one series need not be issued at the same time and, unless otherwise so provided, a series may be reopened for issuances of additional Securities of such series or to establish additional terms of such series of Securities.
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If any of the terms of the Securities of any series shall be established by action taken by or pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate setting forth the terms of such series.
Section 3.02. Currency; Denominations. Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, the principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, Registered Securities denominated in Dollars shall be issuable in registered form without Coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof, and the Bearer Securities denominated in Dollars shall be issuable in the denomination of $5,000. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture or the related Series Authorization.
Section 3.03. Execution, Authentication, Delivery and Dating. Securities shall be executed on behalf of the Company by an Authorized Officer. Coupons, if any, shall be executed on behalf of the Company by the Chief Financial Officer or Chief Accounting Officer of the Company. The signature of any of these officers on the Securities or any Coupons appertaining thereto may be manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities and Coupons or did not hold such offices at the date of original issuance of such Securities or Coupons.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities, together with any Coupons appertaining thereto, executed by the Company, to the Trustee for authentication and, provided that the Board Resolution and Officers’ Certificate or supplemental indenture or indentures with respect to such Securities referred to in Section 3.01 and a Company Order for the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Company Order and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities and any Coupons appertaining thereto, the Trustee shall be provided with, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in, and may conclusively rely upon,
(a) an Opinion or Opinions of Counsel that comply with Section 314 of the Trust Indenture Act; and
(b) an Officers’ Certificate stating that all conditions precedent to the execution, authentication and delivery of such Securities and Coupons, if any, appertaining thereto, have been complied with and that, to the best knowledge of the Persons executing such certificate, no event which is, or after notice or lapse of time would become, an Event of Default with respect to any of the Securities shall have occurred and be continuing.
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If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel and an Officers’ Certificate at the time of issuance of each Security, but such opinion and certificate, with appropriate modifications, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate written request by an Authorized Officer of the Company or any person designated in writing by an Authorized Officer that the Trustee authenticate and deliver Securities of such series for original issue will be deemed to be a certification by the Company that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with.
The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities, nor will it be liable for its refusal to authenticate or cause an Authenticating Agent to authenticate any Securities, if the issue of such Securities will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or may expose the Trustee to personal liability to existing Holders or others.
Each Registered Security shall be dated the date of its authentication. Each Bearer Security and any Bearer Security in global form shall be dated as of the date specified in or pursuant to the related Series Authorization.
No Security or Coupon appertaining thereto shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for in Section 2.02 or Section 6.11 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual or electronic signature of one of its authorized officers. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Except as permitted by Section 3.06 or Section 3.07, the Trustee shall not authenticate and deliver any Bearer Security unless all Coupons appertaining thereto then matured have been detached and cancelled.
Section 3.04. Temporary Securities. Pending the preparation of definitive Securities, the Company may execute and deliver to the Trustee and, upon Company Order, the Trustee shall authenticate and deliver, in the manner provided in Section 3.03, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized in or pursuant to this Indenture or the related Series Authorization, in bearer form with one or more Coupons or without Coupons and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Company executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.
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Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities are issued, the Company shall cause definitive Securities to be prepared without unreasonable delay. After the preparation of definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Upon surrender for cancellation of any one or more temporary Securities (accompanied by any unmatured Coupons appertaining thereto), the Company shall execute and the Trustee upon Company Order shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and containing identical terms and provisions; provided, however, that no definitive Bearer Security, except as provided in or pursuant to this Indenture or the related Series Authorization, shall be delivered in exchange for a temporary Registered Security; and provided, further, that a definitive Bearer Security shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in or pursuant to this Indenture or the related Series Authorization. Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization with respect to a temporary global Security, until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.05. Registration, Transfer and Exchange. With respect to the Registered Securities of each series, if any, the Company shall cause to be kept a register (each such register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of the Registered Securities of such series and of transfers of the Registered Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or pursuant to this Indenture or the related Series Authorization, the Trustee shall be the initial Security Registrar for each series of Securities. The Company shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Company and shall have accepted such appointment by the Company. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series denominated as authorized in or pursuant to this Indenture or the related Series Authorization, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
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If provided in or pursuant to this Indenture or the related Series Authorization, with respect to Securities of any series, at the option of the Holder, Bearer Securities of such series may be exchanged for Registered Securities of such series containing identical terms, denominated as authorized in or pursuant to this Indenture or the related Series Authorization and in the same aggregate principal amount, upon surrender of the Bearer Securities to be exchanged at any Office or Agency for such series, with all unmatured Coupons and all matured Coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company and the Trustee in an amount equal to the face amount of such missing Coupon or Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Bearer Security shall surrender to any Paying Agent any such missing Coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 10.02, interest represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for such series located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such Office or Agency for such series in exchange for a Registered Security of such series and like tenor after the close of business at such Office or Agency on (i) any Regular Record Date and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such Office or Agency on the related date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the Coupon relating to such Interest Payment Date or proposed date of payment, as the case may be (or, if such Coupon is so surrendered with such Bearer Security, such Coupon shall be returned to the Person so surrendering the Bearer Security), and interest or Defaulted Interest, as the case may be, shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but shall be payable only to the Holder of such Coupon when due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture or the related Series Authorization, at the option of the Holder, Registered Securities of such series may be exchanged for Bearer Securities upon such terms and conditions as may be provided in or pursuant to this Indenture or the related Series Authorization.
Whenever any Securities are surrendered for exchange as contemplated by the immediately preceding two paragraphs, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
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Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture or the related Series Authorization, any global Security shall be exchangeable for definitive Securities only if (i) the Depository is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Company within 90 days of the date the Company is so informed in writing, (ii) the Company executes and delivers to the Trustee a Company Order to the effect that such global Security shall be so exchangeable, or (iii) an Event of Default has occurred and is continuing with respect to the Securities. If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities in such form and denominations as are required by or pursuant to this Indenture or the related Series Authorization, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the U.S. Depository or such other Depository as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such other Depository, as the case may be (which instructions shall be in writing but need not be contained in or accompanied by an Officers’ Certificate or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged, which (unless such Securities are not issuable both as Bearer Securities and as Registered Securities, in which case the definitive Securities exchanged for the global Security shall be issuable only in the form in which the Securities are issuable, as provided in or pursuant to this Indenture or the related Series Authorization) shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof, but subject to the satisfaction of any certification or other requirements to the issuance of Bearer Securities; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date; and provided, further, that (unless otherwise provided in or pursuant to this Indenture or the related Series Authorization) no Bearer Security delivered in exchange for a portion of a global Security shall be mailed or otherwise delivered to any location in the United States. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository or the U.S. Depository, as the case may be, or such other Depository or U.S. Depository referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange for any portion of a global Security after the close of business at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next succeeding Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
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All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar for such Security duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange, or redemption of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge and any other expenses (including fees and expenses of the Trustee) that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04, Section 9.05 or Section 11.07 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture or the related Series Authorization, the Company shall not be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of Securities of like tenor and the same series under Section 11.04 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security selected for redemption except, to the extent provided with respect to such Bearer Security, that such Bearer Security may be exchanged for a Registered Security of like tenor and the same series, provided that such Registered Security shall be immediately surrendered for redemption with written instruction for payment consistent with the provisions of this Indenture or (iv) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated Coupon appertaining to it is surrendered to the Trustee, subject to the provisions of this Section 3.06, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or Coupon, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security or Coupon has been acquired by a protected purchaser, the Company shall execute and, upon the Company’s request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or stolen, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding, with Coupons appertaining thereto corresponding to the Coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Coupon appertains.
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Notwithstanding the foregoing provisions of this Section 3.06, in case any mutilated, destroyed, lost or stolen Security or Coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or Coupon; provided, however, that payment of principal of, any premium or interest on or any Additional Amounts with respect to any Bearer Securities shall, except as otherwise provided in Section 10.02, be payable only at an Office or Agency for such Securities located outside the United States and, unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, any interest on Bearer Securities and any Additional Amounts with respect to such interest shall be payable only upon presentation and surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee and the fees and expenses of the Trustee’s counsel) connected therewith.
Every new Security, with any Coupons appertaining thereto issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost or stolen Coupon appertains shall constitute a separate obligation of the Company, whether or not the destroyed, lost or stolen Security and Coupons appertaining thereto or the destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series and any Coupons, if any, duly issued hereunder.
The provisions of this Section 3.06, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall be exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons.
Section 3.07. Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved. Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
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(a) The Company may elect to make payment of any Defaulted Interest to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed by the Company in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on such Registered Security, the Special Record Date therefor and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when so deposited to be held in trust in a segregated trust account pursuant to express written instructions of the Company for the benefit of the Person entitled to such Defaulted Interest as in this Clause provided. The Special Record Date for the payment of such Defaulted Interest shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after notification to the Trustee of the proposed payment. The Trustee shall, in the name and at the expense of the Company, cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. If such Defaulted Interest relates to Securities of a series that are issued as Bearer Securities, the Trustee shall, in the name and at the expense of the Company cause a similar notice to be published at least once in an Authorized Newspaper of general circulation in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization of any particular series pursuant to the provisions of this Indenture, at the option of the Company, interest on Registered Securities that bear interest may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to an account maintained by the payee with a bank located in the United States.
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Subject to the foregoing provisions of this Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Registered Security of any series that is convertible into or exchangeable for other securities, which Registered Security is converted or exchanged after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Registered Security with respect to which the Stated Maturity is prior to such Interest Payment Date), interest with respect to which the Stated Maturity is on such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion or exchange, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Registered Security (or one or more predecessor Registered Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Registered Security which is converted or exchanged, interest with respect to which the Stated Maturity is after the date of conversion or exchange of such Registered Security shall not be payable.
Section 3.08. Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered in the Security Register as the owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Section 3.05 and Section 3.07) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security or the bearer of any Coupon as the absolute owner of such Security or Coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not any payment with respect to such Security or Coupon shall be overdue, and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.09. Cancellation. All Securities and Coupons surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Coupons, as well as Securities and Coupons surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by or pursuant to this Indenture or the related Series Authorization. All cancelled Securities and Coupons held by the Trustee shall be disposed of by the Trustee in its customary manner and the Trustee shall deliver a certificate of such disposition to the Company upon its written request therefor, unless by a Company Order the Company directs that the cancelled Securities and Coupons be returned to it.
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Section 3.10. Computation of Interest. Except as otherwise provided in or pursuant to this Indenture or the related Series Authorization, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11. CUSIP Numbers. The Company in issuing the Securities may use “CUSIP,” “CINS” and “ISIN” numbers (if then generally in use), and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in notices of redemption or exchange as a convenience to Holders and no representation shall be made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption or exchange. The Company shall promptly notify the Trustee in writing of any change in CUSIP, CINS or ISIN numbers.
ARTICLE 4
Satisfaction and Discharge of Indenture
Section 4.01. Satisfaction and Discharge. Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Company Order and any Coupons appertaining thereto, and the Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(a) either
(i) all Securities of such series theretofore authenticated and delivered and all Coupons appertaining thereto (other than (A) Coupons appertaining to Bearer Securities of such series surrendered in exchange for Registered Securities of such series and maturing after such exchange whose surrender is not required or has been waived as provided in Section 3.05, (B) Securities and Coupons of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06, (C) Coupons appertaining to Securities of such series called for redemption and maturing after the relevant Redemption Date whose surrender has been waived as provided in Section 11.07, and (D) Securities and Coupons of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
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(ii) all Securities of such series and, in the case of (A) or (B) below, any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated Maturity within one year, or
(C) if redeemable at the option of the Company or pursuant to the operation of a sinking fund, are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in which such Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities and any Coupons appertaining thereto not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on, and any Additional Amounts with respect to such Securities and any Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Outstanding Securities of such series and any Coupons appertaining thereto; and
(c) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Company to the Trustee under Section 6.06 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Company and the Trustee with respect to the Securities of such series under Sections 3.05, 3.06, 4.03, 10.02 and 10.03, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by the terms of such Securities (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.01(a)(ii)), and with respect to any rights to convert or exchange such Securities into Common Stock of the Company or other securities shall survive such satisfaction and discharge.
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Section 4.02. Defeasance and Covenant Defeasance. (a) Unless pursuant to Section 3.01, either or both of (i) defeasance of the Securities of or within a series under clause (b) of this Section 4.02 shall not be applicable with respect to the Securities of such series or (ii) covenant defeasance of the Securities of or within a series under clause (c) of this Section 4.02 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant to Section 3.01 with respect to any Securities), shall be applicable to such Securities and any Coupons appertaining thereto, and the Company may at its option by Board Resolution, at any time, with respect to such Securities and any Coupons appertaining thereto, elect to have Section 4.02(b) or Section 4.02(c) be applied to such Outstanding Securities and any Coupons appertaining thereto upon compliance with the conditions set forth below in this Section 4.02.
(b) Upon the Company’s exercise of the above option applicable to this Section 4.02(b) with respect to any Securities of or within a series, the Company and the Guarantor shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any Coupons appertaining thereto and under the Guarantee in respect thereof, respectively, on the date the conditions set forth in clause (d) of this Section 4.02 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company or the Guarantor shall be deemed to have paid and discharged the entire Indebtedness represented by such Outstanding Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (e) of this Section 4.02 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and to have satisfied all of its other obligations under such Securities and any Coupons appertaining thereto, and under the Guarantee in respect thereof, and this Indenture insofar as such Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, are concerned (and the Trustee, at the expense of the Company and the Guarantor, shall execute proper instruments provided to it acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities and any Coupons appertaining thereto to receive, solely from the trust fund described in clause (d) of this Section 4.02 and as more fully set forth in such clause, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities and any Coupons appertaining thereto when such payments are due, and any rights of such Holder to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (ii) the obligations of the Company, the Guarantor and the Trustee with respect to such Securities under Sections 3.05, 3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by the terms of such Securities (but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 4.02(d)(i) below), and with respect to any rights to convert such Securities into Common Stock of the Company or exchange such Securities for securities of the Guarantor or another issuer, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder including, without limitation, the compensation, reimbursement and indemnities provided in Section 6.06 herein and (iv) this Section 4.02. The Company may exercise its option under this Section 4.02(b) notwithstanding the prior exercise of its option under clause (c) of this Section 4.02 with respect to such Securities and any Coupons appertaining thereto.
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(c) Upon the Company’s exercise of the option to have this Section 4.02(c) apply with respect to any Securities of or within a series, the Company and the Guarantor shall be released from their obligations under any covenant applicable to such Securities specified pursuant to Section 3.01(t), including any obligation to redeem or repurchase such securities at the option of the Holder thereof, with respect to such Outstanding Securities and any Coupons appertaining thereto, and the Guarantee in respect thereof, on and after the date the conditions set forth in clause (d) of this Section 4.02 are satisfied (hereinafter, “covenant defeasance”), and such Securities and any Coupons appertaining thereto shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any Coupons appertaining thereto, the Company and the Guarantor may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or such other covenant or obligation, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or obligation or by reason of reference in any such Section or such other covenant or obligation to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 5.01 but, except as specified above, the remainder of this Indenture and such Securities and Coupons appertaining thereto and the Guarantee in respect thereof shall be unaffected thereby.
(d) The following shall be the conditions to application of clause (b) or (c) of this Section 4.02 to any Outstanding Securities of or within a series and any Coupons appertaining thereto and the Guarantee in respect thereof:
(i) The Company or the Guarantor shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.07 who shall agree to comply with the provisions of this Section 4.02 applicable to it) as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any Coupons appertaining thereto, (A) an amount in Dollars or in such Foreign Currency in which such Securities and any Coupons appertaining thereto are then specified as payable at Stated Maturity, or (B) Government Obligations applicable to such Securities and Coupons appertaining thereto (determined on the basis of the Currency in which such Securities and Coupons appertaining thereto are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment with respect to such Securities and any Coupons appertaining thereto, money in an amount, or (C) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and any Additional Amounts with respect to such Securities and Coupons appertaining thereto (based upon applicable law as in effect on the date of such deposit), such Outstanding Securities and any Coupons appertaining thereto at the Stated Maturity or Redemption Date of such principal or installment of principal or premium or interest and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities and any Coupons appertaining thereto on the days on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any Coupons appertaining thereto and, if applicable, shall have made irrevocable arrangements satisfactory to the Trustee for the redemption of any Securities to be redeemed at the option of the Company in connection with such deposit.
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(ii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities and any Coupons appertaining thereto shall have occurred and be continuing on the date of such deposit (after giving effect thereto) and, with respect to defeasance only, no event described in Section 5.01(f) or Section 5.01(g) at any time during the period ending on the 91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iii) Such defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement or instrument (other than this Indenture) to which the Company is a party or by which it is bound.
(iv) In the case of an election under clause (b) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company or the Guarantor has received from the Internal Revenue Service a letter ruling, or there has been published by the Internal Revenue Service a Revenue Ruling, or (B) since the date of execution of this Indenture, there has been a change in the applicable United States Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(v) In the case of an election under clause (c) of this Section 4.02 with respect to Registered Securities and any Bearer Securities for which the Place of Payment is within the United States, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Outstanding Securities and any Coupons appertaining thereto will not recognize income, gain or loss for United States Federal income tax purposes as a result of such covenant defeasance and will be subject to United States Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(vi) With respect to defeasance only, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel to the effect that, after the 91st day after the date of deposit, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited or caused to be deposited with the Trustee (or other qualifying trustee) pursuant to this clause (d) to be held in trust will not be subject to recapture or avoidance as a preference in any case or proceeding (whether voluntary or involuntary) in respect of the Company or the Guarantor under any Federal or State bankruptcy, insolvency, reorganization or other similar law, or any decree or order for relief in respect of the Company or the Guarantor issued in connection therewith (for which purpose such Opinion of Counsel may assume that no Holder is an “insider”).
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(vii) With respect to defeasance only, the Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate as to solvency and the absence of any intent of preferring the Holders over any other creditors of the Company.
(viii) The Company and the Guarantor shall have delivered to the Trustee an Officers’ Certificate and a Guarantor’s Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or covenant defeasance under clause (b) or (c) of this Section 4.02 (as the case may be) have been complied with.
(ix) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or covenant defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Company or the Guarantor in connection therewith pursuant to Section 3.01.
(e) Unless otherwise specified in or pursuant to this Indenture or any Series Authorization, if, after a deposit referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i) has been made, the indebtedness represented by such Security and any Coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to clause (i) above, the applicable market exchange rate for such Currency in effect on the second Local Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event. “Local Business Day” means a day on which commercial banks are open for business (including dealings in foreign exchange) in the principal financial center of the Currency of such payment.
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The Company and the Guarantor (without duplication) shall pay and indemnify the Trustee (or other qualifying trustee, collectively for purposes of this Section 4.02(e) and Section 4.03, the “Trustee”) against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 4.02 or the principal or interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of such Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request, or the Guarantor upon Guarantor Request, as the case may be, any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.02.
Section 4.03. Application of Trust Money. Subject to the provisions of the last paragraph of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including the proceeds thereof) deposited with the Trustee pursuant to Section 4.01 or Section 4.02 in respect of any Outstanding Securities of any series and any Coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any Coupons appertaining thereto and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any Coupons appertaining thereto of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any; but such money and Government Obligations need not be segregated from other funds except to the extent required by law.
Section 4.04. Reinstatement. If the Trustee or Paying Agent is unable to apply any money or Government Obligations in accordance with Section 4.03 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under this Indenture and the Securities of the applicable series shall be revived and reinstated as though no deposit had occurred pursuant to Section 4.01 or 4.02, as the case may be, until such time as the Trustee or Paying Agent is permitted to apply all such money or Government Obligations in accordance with Section 4.03; provided, that, if the Company has made any payment of principal of or interest on the Securities of any series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or Government Obligations held by the Trustee or Paying Agent.
ARTICLE 5
Remedies
Section 5.01. Events of Default. “Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless such event is specifically deleted or modified in or pursuant to the related Series Authorization:
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(a) default in the payment of any interest on any Security of such series, or any Additional Amounts payable with respect thereto, when such interest becomes or such Additional Amounts become due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or any premium on any Security of such series, or any Additional Amounts payable with respect thereto, when such principal or premium becomes or such Additional Amounts become due and payable either at their Maturity, upon any redemption, by declaration of acceleration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of the Company or the Guarantor in this Indenture or the Securities (other than a covenant or warranty a default in the performance or the breach of which is elsewhere in this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, (i) to the Company or the Guarantor, as the case may be, by the Trustee or (ii) to the Company and the Trustee, or the Guarantor and the Trustee, as the case may be, by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) if any event of default as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any Indebtedness of the Company or the Guarantor for borrowed money (other than Indebtedness which is non-recourse to the Company or the Guarantor, as the case may be) shall happen and shall consist of default in the payment of more than $100,000,000 in principal amount of such Indebtedness when due (after giving effect to any applicable grace period) or shall result in such Indebtedness in principal amount in excess of $100,000,000 becoming or being declared due and payable prior to the date on which it would otherwise become due and payable, and such default shall not be cured or waived or such acceleration shall not be rescinded or annulled within a period of 30 days after there shall have been given, by registered or certified mail, (i) to the Company or the Guarantor, as the case may be, by the Trustee or (ii) to the Company and the Trustee, or the Guarantor and the Trustee, as the case may be, by the Holders of at least 25% in principal amount of the Outstanding Securities of such series, a written notice specifying such event of default and requiring the Company or the Guarantor, as the case may be, to cause such default to be cured or waived or to cause such acceleration to be rescinded or annulled or to cause such Indebtedness to be discharged and stating that such notice is a “Notice of Default” hereunder; or
(e) the Company or the Guarantor shall fail within 60 days to pay, bond or otherwise discharge any uninsured judgment or court order for the payment of money in excess of $100,000,000, which is not stayed on appeal or is not otherwise being appropriately contested in good faith; or
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(f) the entry by a court having competent jurisdiction of:
(i) a decree or order for relief in respect of the Company or the Guarantor in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(ii) a decree or order adjudging the Company or the Guarantor to be insolvent, or approving a petition seeking reorganization (other than a reorganization under a foreign law that does not relate to insolvency), arrangement, adjustment or composition of the Company or the Guarantor and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
(iii) a final and non-appealable order appointing a custodian, receiver, liquidator, assignee, trustee or other similar official of the Company or the Guarantor or of any substantial part of the property of the Company or the Guarantor, or ordering the winding up or liquidation of the affairs of the Company or the Guarantor; or
(g) the commencement by the Company or the Guarantor of a voluntary proceeding under any applicable bankruptcy, insolvency, reorganization (other than a reorganization under a foreign law that does not relate to insolvency) or other similar law or of a voluntary proceeding seeking to be adjudicated insolvent or the consent by the Company or the Guarantor to the entry of a decree or order for relief in an involuntary proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any insolvency proceedings against it, or the filing by the Company or the Guarantor of a petition or answer or consent seeking reorganization, arrangement, adjustment or composition of the Company or the Guarantor or relief under any applicable law, or the consent by the Company or the Guarantor to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or similar official of the Company or the Guarantor or any substantial part of the property of the Company or the Guarantor or the making by the Company or the Guarantor of an assignment for the benefit of creditors, or the taking of corporate action by the Company or the Guarantor in furtherance of any such action; or
(h) other than as expressly permitted in this Indenture, the Guarantee ceases to be in full force and effect with respect to any Securities of such series or is declared to be null and void and unenforceable; or
(i) any other or substitute Event of Default provided in or pursuant to this Indenture or the related Series Authorization with respect to Securities of such series.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding (other than an Event of Default specified in clause (f) or (g) of Section 5.01) occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal of all the Securities of such series, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal shall become immediately due and payable.
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If an Event of Default specified in clause (f) or (g) of Section 5.01 occurs, all unpaid principal of and accrued interest on the Outstanding Securities of that series shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of any Security of that series.
At any time after a declaration of acceleration with respect to the Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of not less than a majority in principal amount of the Outstanding Securities of such series, by written notice to the Company or the Guarantor, as the case may be, and the Trustee, may rescind and annul such declaration and its consequences if
(a) the Company or the Guarantor has paid or deposited with the Trustee a sum of money sufficient to pay
(i) all overdue installments of any interest on and Additional Amounts with respect to all Securities of such series and any Coupon appertaining thereto,
(ii) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon and any Additional Amounts with respect thereto at the rate or rates borne by or provided for in such Securities,
(iii) to the extent that payment of such interest or Additional Amounts is lawful, interest upon overdue installments of any interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.06; and
(b) all Events of Default with respect to Securities of such series, other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any installment of interest on or any Additional Amounts with respect to any Security or any Coupon appertaining thereto when such interest or Additional Amounts shall have become due and payable and such default continues for a period of 30 days, or
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(b) default is made in the payment of the principal of or any premium on any Security or any Additional Amounts with respect thereto at their Maturity, the Company shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities and any Coupons appertaining thereto, the whole amount of money then due and payable with respect to such Securities and any Coupons appertaining thereto, with interest upon the overdue principal, any premium and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.06.
If the Company fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company and/or the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Company and/or the Guarantor or any other obligor upon such Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any Coupons appertaining thereto by such appropriate judicial proceedings as the Trustee shall deem necessary or advisable to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy.
Section 5.04. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company and/or the Guarantor or any other obligor upon the Securities of any series or the property of the Company and/or the Guarantor or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company and/or the Guarantor for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, to the extent permitted by applicable law by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of any applicable series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and any Coupons appertaining thereto and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities or any Coupons appertaining thereto allowed in such judicial proceeding, and
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(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities or any Coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities or any Coupons, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or any Coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or Coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or any Coupon in any such proceeding.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claims under this Indenture or any of the Securities or Coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or Coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of the Securities or Coupons in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall, subject to Article 16, be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal, or any premium, interest or Additional Amounts, upon presentation of the Securities or Coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee (including its agents and counsel) and any predecessor Trustee, in each case under Section 6.06;
Second: To the payment of the amounts then due and unpaid upon the Securities and any Coupons for principal and any premium, interest and Additional Amounts in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on such Securities and Coupons for principal and any premium, interest and Additional Amounts, respectively;
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Third: The balance, if any, to the Company or its successors as evidenced by an Officers’ Certificate or as a court of competent jurisdiction may direct.
Section 5.07. Limitations on Suits. No Holder of any Security of any series or any Coupons appertaining thereto shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of not less than 25% in principal amount of the Outstanding Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee such indemnity as is satisfactory to it in its reasonable judgment against the costs, expenses and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 5.08. Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts. Notwithstanding any other provision in this Indenture, the Holder of any Security or Coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of, any premium and (subject to Section 3.05 and Section 3.07) interest on, and any Additional Amounts with respect to such Security or payment of such Coupon, as the case may be, on the respective Stated Maturity or Maturities therefor specified in such Security or Coupon (or, in the case of redemption, on the Redemption Date or, in the case of repayment at the option of such Holder if provided with respect to such Security, on the date such repayment is due) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder.
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Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder of a Security or a Coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Guarantor, the Trustee and each such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security or a Coupon is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Security or Coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to any Holder of a Security or a Coupon may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 5.12. Control by Holders of Securities. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series and any Coupons appertaining thereto, provided that
(a) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of such series,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and
(c) such direction is not unduly prejudicial to the rights of the other Holders of Securities of such series not joining in such action.
Section 5.13. Waiver of Past Defaults. Subject to Section 5.02, the Holders of not less than a majority in principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series and any Coupons appertaining thereto may waive any past default hereunder with respect to such series and its consequences, except a default
(a) in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series or any Coupons appertaining thereto, or
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(b) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. Waiver of Usury, Stay or Extension Laws. The Company covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company expressly waives (to the extent that it may lawfully do so) all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 5.15. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 5.15 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment or repurchase, on or after the date for repayment or repurchase) or for the enforcement of the right, if any, to convert or exchange any Security into Common Stock or other securities in accordance with its terms.
ARTICLE 6
The Trustee
Section 6.01. Certain Rights of Trustee. Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may conclusively rely 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, coupon or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order (in each case, other than delivery of any Security, together with any Coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 3.03 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture or the related Series Authorization at the request or direction of any of the Holders of Securities of any series or any Coupons appertaining thereto pursuant to this Indenture, unless such Holders shall have offered to the Trustee such security or indemnity as is satisfactory to it in its reasonable judgment against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the 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, coupon or other paper or document, but the Trustee, in its discretion, may but shall not be obligated to make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine, during business hours and upon reasonable notice, the books, records and premises of the Company, personally or by agent or attorney;
(g) the 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 Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee appointed with due care by it hereunder;
(h) the 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 or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent or engaged in willful misconduct;
(i) the Trustee shall not be liable (including, without limitation, for consequential loss or damages) with respect to any action taken, suffered or omitted to be taken by it in good faith in accordance with an Act of the Holders hereunder, and, to the extent not so provided herein, with respect to any act requiring the Trustee to exercise its own discretion, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture or any Securities, unless it shall be proved that, in connection with any such action taken, suffered or omitted or any such act, the Trustee was negligent, acted in bad faith or engaged in willful misconduct;
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(j) the Trustee is not responsible to see that the Company or any other Person is maintaining any insurance required by the Indenture;
(k) the Trustee shall not be responsible for the recording, rerecording, filing of UCC Statements or UCC Continuation Statements;
(l) in the absence of bad faith on its part, the 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 Trustee which conform to the requirements of the Indenture;
(m) except during the continuance of an Event of Default, the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee;
(n) except as expressly required by the terms of this Indenture, none of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it;
(o) in case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his own affairs;
(p) the Trustee shall not be charged with knowledge of any default or Event of Default (except in the case of a default in the payment of principal of or interest on any Security) with respect to the Securities of any series unless written notice of such default or Event of Default shall have been given to the Trustee by the Company or any Holder of the Securities of any series and such notice references this Indenture;
(q) in no event shall the Trustee be responsible or liable for special, indirect, punitive 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;
(r) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder; and
(s) the Trustee may request that the Company deliver a certificate and/or Board Resolutions, as the Company deems appropriate, setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
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Section 6.02. Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series (of which the Trustee has received notice in accordance with Section 6.01(p)), the Trustee shall transmit to all Holders of Securities of such series entitled to receive reports pursuant to Section 7.03(c), notice of such default hereunder, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (or premium, if any), or interest, if any, on, or Additional Amounts or any sinking fund or purchase fund installment with respect to, any Security of such series, the 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 Trustee in good faith determine that the withholding of such notice is in the best interest of the Holders of Securities and Coupons of such series; and provided, further, that in the case of any default of the character specified in Section 5.01(d) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
Section 6.03. Not Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, and in any Coupons shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or the Coupons. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of the Securities or the proceeds thereof.
Section 6.04. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee or the Company, in its individual or any other capacity, may become the owner or pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have if it were not the Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 6.05. Money Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed to in writing with the Company.
Section 6.06. Compensation, Reimbursement and Indemnification. The Company agrees:
(a) to pay to the Trustee from time to time reasonable compensation for all services rendered by the Trustee hereunder as agreed in writing between the Company and the Trustee (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all expenses, disbursements and advances reasonably incurred or made by the Trustee in accordance with any provision of this Indenture or arising out of or in connection with the acceptance or administration of the trust or trusts hereunder (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall have been caused by the Trustee’s negligence, bad faith or willful misconduct; and
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(c) to indemnify the Trustee and its agents, officers, directors and employees 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 the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, claim, damage, liability or expense shall be determined to have been caused by the Trustee’s negligence, bad faith or willful misconduct.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, and premium or interest on or any Additional Amounts with respect to Securities or any Coupons appertaining thereto.
To the extent permitted by law, any compensation or expense incurred by the Trustee (including the fees and expenses of its counsel) after a default specified in or pursuant to Section 5.01 is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 6.06 shall include any predecessor Trustee but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee under this Section 6.06.
The provisions of this Section 6.06 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee and shall apply with equal force and effect to the Trustee in its capacity as Authenticating Agent, Paying Agent or Security Registrar.
Section 6.07. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder that is a Corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, that is eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000, and that is subject to supervision or examination by Federal or state authority. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.08. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee pursuant to Section 6.09.
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(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor Trustee or Trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor Trustee or Trustees. If the instrument of acceptance by a successor Trustee required by Section 6.09 shall not have been delivered to the Trustee within 90 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Company. If the instrument of acceptance by a successor Trustee required by Section 6.09 shall not have been delivered to the Trustee within 90 days after the giving of such notice of removal, the removed Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(d) If at any time:
(i) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Company or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.07 and shall fail to resign after written request therefor by the Company or any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (B) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
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(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of such series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.09. If, within one year after such resignation, removal or incapacity, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.09, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner required by Section 6.09, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register and, if Securities of such series are issued as Bearer Securities, by publishing notice of such event once in an Authorized Newspaper in each Place of Payment located outside the United States. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
(g) In no event shall any retiring Trustee be liable for the acts or omissions of any successor Trustee hereunder.
Section 6.09. Acceptance of Appointment by Successor. (a) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the written request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 10.03, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 6.06.
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(b) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on written request of the Company or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor Trustee relates and subject to Section 10.03 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to its claim, if any, provided for in Section 6.06.
(c) Upon request of any Person appointed hereunder as a successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified and eligible under this Article.
Section 6.10. Merger, Conversion, Consolidation or Succession to Business. Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the corporate agency or corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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Section 6.11. Appointment of Authenticating Agent. The Trustee may appoint one or more Authenticating Agents acceptable to the Company with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption or partial repayment or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and, except as provided in or pursuant to this Indenture or the related Series Authorization, shall at all times be a Corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding to all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, provided such Corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall (i) mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register, and (ii) if Securities of the series are issued as Bearer Securities, publish notice of such appointment at least once in an Authorized Newspaper in the place where such successor Authenticating Agent has its principal office if such office is located outside the United States. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
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The Company agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section.
The provisions of Section 3.08, Section 6.03 and Section 6.04 shall be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
| THE BANK OF NEW YORK MELLON,
as Trustee | ||
| By: | ||
| as Authenticating Agent | ||
| By: | ||
| as Authorized Officer | ||
If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers’ Certificate by the Company), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities.
ARTICLE 7
Holders Lists and Reports by Trustee and Company
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders. In accordance with Section 312(a) of the Trust Indenture Act, the Company shall furnish or cause to be furnished to the Trustee
(a) semi-annually with respect to Securities of each series not later than May 1 and November 1 of the year or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date, and
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(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished.
Section 7.02. Preservation of Information; Communications to Holders. The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee, any Paying Agent or any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust Indenture Act, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.
Section 7.03. Reports by Trustee. (a) Within 60 days after May 15 of each year commencing with the first May 15 following the first issuance of Securities pursuant to Section 3.01, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such May 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and 313(d) of the Trust Indenture Act.
Section 7.04. Reports by Company.
(a) The Company shall file with the Trustee and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so filed with the Commission. The Company shall transmit within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and reports required to be filed by the Company pursuant to this paragraph as may be required by rules and regulations prescribed from time to time by the Commission.
(b) Delivery of such reports, information and documents to the Trustee is for information purposes only, and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on an Officers’ Certificate).
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ARTICLE 8
Consolidation, Amalgamations, Merger and Sales
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms. The Company shall not consolidate or amalgamate with or merge into any other Person (whether or not affiliated with the Company), or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Company), and the Company shall not permit any other Person (whether or not affiliated with the Company) to consolidate or amalgamate with or merge into the Company or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to the Company; unless:
(a) in case the Company shall consolidate or amalgamate with or merge into another Person or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any Person, the Person formed by such consolidation or amalgamation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company as an entirety or substantially as an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, Bermuda, or any other country which is on the date of this Indenture a member of the Organization of Economic Cooperation and Development, and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the successor Person and delivered to the Trustee the due and punctual payment of the principal of, any premium and interest on and any Additional Amounts with respect to all the Securities and the performance of every obligation in this Indenture and the Outstanding Securities on the part of the Company to be performed or observed and shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Common Stock or other securities;
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company as a result of such transaction as having been incurred by the Company at the time of such transaction, no Event of Default with respect to the Company, or event which, after notice or lapse of time, or both, would become an Event of Default with respect to the Company, shall have occurred and be continuing; and
(c) either the Company or the successor Person shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor Person Substituted for Company. Upon any consolidation or amalgamation by the Company with or merger of the Company into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor Person formed by such consolidation or amalgamation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein; and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture, the Securities and the Coupons.
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Section 8.03. Guarantor May Consolidate, Etc., Only on Certain Terms. The Guarantor shall not consolidate or amalgamate with or merge into any other Person (whether or not affiliated with the Guarantor), or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any other Person (whether or not affiliated with the Guarantor), and the Guarantor shall not permit any other Person (whether or not affiliated with the Guarantor) to consolidate or amalgamate with or merge into the Guarantor or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to the Guarantor; unless:
(a) in case the Guarantor shall consolidate or amalgamate with or merge into another Person or convey, transfer or lease its properties and assets as an entirety or substantially as an entirety to any Person, the Person formed by such consolidation or amalgamation or into which the Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Guarantor as an entirety or substantially as an entirety shall be a Corporation organized and existing under the laws of the United States of America, any state thereof or the District of Columbia, Bermuda, or any other country which is on the date of this Indenture a member of the Organization of Economic Cooperation and Development, and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed by the successor Person and the Company and delivered to the Trustee the due and punctual payment of the principal of, any premium and interest (including any Additional Interest) on and any Additional Amounts with respect to all the Securities and the performance of every obligation in this Indenture and the Outstanding Securities on the part of the Guarantor to be performed or observed and shall provide for conversion or exchange rights in accordance with the provisions of the Securities of any series that are convertible or exchangeable into Common Stock or other securities;
(b) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Guarantor or a Subsidiary as a result of such transaction as having been incurred by the Guarantor or such Subsidiary at the time of such transaction, no Event of Default with respect to the Guarantor, or event which, after notice or lapse of time, or both, would become an Event of Default with respect to the Guarantor, shall have occurred and be continuing;
(c) either the Guarantor or the successor Person shall have delivered to the Trustee a Guarantor’s Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with.
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Section 8.04. Successor Person Substituted for Guarantor. Upon any consolidation or amalgamation by the Guarantor with or merger of the Guarantor into any other Person or any conveyance, transfer or lease of the properties and assets of the Guarantor substantially as an entirety to any Person in accordance with Section 8.03, the successor Person formed by such consolidation or amalgamation or into which the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture with the same effect as if such successor Person had been named as the Guarantor herein; and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture, the Securities and the Coupons.
ARTICLE 9
Supplemental Indentures
Section 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders of Securities or Coupons, the Company (when authorized by or pursuant to a Board Resolution), the Guarantor (when authorized by or pursuant to a Board Resolution by the Guarantor’s Board of Directors) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, for any of the following purposes:
(a) to evidence the succession of another Person to the Company and/or the Guarantor, and the assumption by any such successor of the covenants of the Company contained herein and in the Securities; or
(b) to add to the covenants of the Company and/or the Guarantor for the benefit of the Holders of all or any series of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender any right or power herein conferred upon the Company and/or the Guarantor; or
(c) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of, any premium or interest on or any Additional Amounts with respect to Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be exchanged for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Outstanding Securities of any series or any Coupons appertaining thereto in any material respect; or
(d) to establish the forms or terms of Securities of any series and any Coupons appertaining thereto as permitted by Sections 2.01 and 3.01; or
(e) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.09; or
(f) to cure any ambiguity or to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not adversely affect the interests of the Holders of Securities of any series then Outstanding or any Coupons appertaining thereto in any material respect; or
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(g) to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or
(h) to add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture); or
(i) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Article 4, provided that any such action shall not adversely affect the interests of any Holder of an Outstanding Security of such series and any Coupons appertaining thereto or any other Outstanding Security or Coupon in any material respect; or
(j) to make provisions with respect to conversion or exchange rights of Holders of Securities of any series; or
(k) to amend or supplement any provision contained herein or in any supplemental indenture, provided that no such amendment or supplement shall materially adversely affect the interests of the Holders of any Securities then Outstanding.
Section 9.02. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company (when authorized by or pursuant to a Company’s Board Resolution), the Guarantor (when authorized pursuant to a Board Resolution of the Guarantor’s Board of Directors) and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture or of the Securities of such series; provided, however, that no such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby, shall
(a) change the Stated Maturity of the principal of, or any premium or installment of interest on or any Additional Amounts with respect to, any Security, or reduce the principal amount thereof (or modify the calculation of such principal amount) or the rate (or modify the calculation of such rate) of interest thereon or any Additional Amounts with respect thereto, or any premium payable upon the redemption thereof or otherwise, or change the obligation of the Company to pay Additional Amounts pursuant to the terms of such Security (except as contemplated by Section 8.01(a) and permitted by Section 9.01(a)) or change the redemption provisions or adversely affect the right of repayment at the option of any Holder as contemplated by Article 13, or change the Place of Payment, Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect to any Security is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date or, in the case of repayment at the option of the Holder, on or after the date for repayment), or
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(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 15.04 for quorum or voting, or
(c) modify any of the provisions of this Indenture relating to the subordination of the Securities in a manner adverse to Holders of Securities, or
(d) modify any of the provisions of this Section or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or
(e) make any change that adversely affects the right to convert or exchange any Security into or for other securities (whether or not issued by the Company), cash or property in accordance with its terms.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been included expressly and solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures. As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, in accordance with Section 1.02, the Trustee shall be provided with, and (subject to Section 315 of the Trust Indenture Act) shall be fully protected in relying upon, an Officers’ Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of a Security theretofore or thereafter authenticated and delivered hereunder and of any Coupon appertaining thereto shall be bound thereby.
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Section 9.05. Reference in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.06. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.07. Effect on Senior Indebtedness. No supplemental indenture shall directly or indirectly modify or eliminate the provisions of Article 16 in any manner which might terminate or impair the subordination of the Securities of any series to Indebtedness of the Company that constitutes Senior Indebtedness without the prior written consent of the holders of such Senior Indebtedness.
Section 9.08. Notice of Supplemental Indenture. Promptly after the execution by the Company and the Guarantor, if applicable, and the Trustee of any supplemental indenture pursuant to Section 9.02, the Company shall transmit to the Holders of Outstanding Securities of any series affected thereby a notice setting forth the substance of such supplemental indenture.
ARTICLE 10
Covenants
Section 10.01. Payment of Principal, any Premium, Interest and Additional Amounts. The Company covenants and agrees for the benefit of the Holders of the Securities of each series that it will duly and punctually pay the principal of, any premium and interest on and any Additional Amounts with respect to the Securities of such series in accordance with the terms thereof, any Coupons appertaining thereto and this Indenture. Any interest due on any Bearer Security on or before the Maturity thereof, and any Additional Amounts payable with respect to such interest, shall be payable only upon presentation and surrender of the Coupons appertaining thereto for such interest as they severally mature.
Section 10.02. Maintenance of Office or Agency. The Company shall maintain in each Place of Payment for any series of Securities an Office or Agency where Securities of such series (but not Bearer Securities, except as otherwise provided below, unless such Place of Payment is located outside the United States) may be presented or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange, where Securities of such series that are convertible or exchangeable may be surrendered for conversion or exchange, and where notices and demands to or upon the Company in respect of the Securities of such series relating thereto and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company, except as otherwise permitted or required in or pursuant to this Indenture or the related Series Authorization shall maintain, subject to any laws or regulations applicable thereto, an Office or Agency in a Place of Payment for such series which is located outside the United States where Securities of such series and any Coupons appertaining thereto may be presented and surrendered for payment; provided, however, that if the Securities of such series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company shall maintain a Paying Agent in London, Luxembourg or any other required city located outside the United States, as the case may be, so long as the Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such Office or Agency. If at any time the Company shall fail to maintain any such required Office or Agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, except that Bearer Securities of such series and any Coupons appertaining thereto may be presented and surrendered for payment at the place specified for the purpose with respect to such Securities as provided in or pursuant to this Indenture or the related Series Authorization, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture or the related Series Authorization, no payment of principal, premium, interest or Additional Amounts, if any, with respect to Bearer Securities shall be made at any Office or Agency in the United States or by check mailed to any address in the United States or by wire transfer to an account maintained with a bank located in the United States; provided, however, if amounts owing with respect to any Bearer Securities shall be payable in Dollars, payment of principal of, any premium or interest on and any Additional Amounts with respect to any such Security may be made at the Corporate Trust Office of the Trustee or any Office or Agency designated by the Company in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium, interest or Additional Amounts at all offices outside the United States maintained for such purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other Offices or Agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an Office or Agency in each Place of Payment for Securities of any series for such purposes. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other Office or Agency. Unless otherwise provided in or pursuant to this Indenture or the related Series Authorization, the Company hereby designates as the Place of Payment for each series of Securities the Borough of Manhattan, The City of New York, and initially appoints the Corporate Trust Office of the Trustee as the Office or Agency of the Company in the Borough of Manhattan, The City of New York for such purpose. The Company may subsequently appoint a different Office or Agency in the Borough of Manhattan, The City of New York for the Securities of any series.
Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent.
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Section 10.03. Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it shall, on or before each due date of the principal of, any premium or interest on or Additional Amounts with respect to any of the Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series) sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and shall promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it shall, on or prior to 10:00 a.m., New York City time, on each due date of the principal of, any premium or interest on or any Additional Amounts with respect to any Securities of such series, deposit with any Paying Agent a sum (in the currency or currencies, currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal and any premium, interest or Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent shall:
(a) hold all sums held by it for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as provided in or pursuant to this Indenture or the related Series Authorization;
(b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of such series) in the making of any payment of principal of, any premium or interest on or any Additional Amounts with respect to the Securities of such series; and
(c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
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Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of, any premium or interest on or any Additional Amounts with respect to any Security of any series or any Coupon appertaining thereto and remaining unclaimed for two years after such principal or any such premium or interest or any such Additional Amounts shall have become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security or any Coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, at the expense of the Company may cause to be published once, in an Authorized Newspaper in each Place of Payment for such series or to be mailed to Holders of Registered Securities of such series, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing nor shall it be later than two years after such principal or any premium or interest or Additional Amounts shall have become due and payable, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. [Reserved].
Section 10.05. [Reserved].
Section 10.06. [Reserved].
Section 10.07. Company and Guarantor’s Statement as to Compliance; Notice of Certain Defaults. (a) The Company and the Guarantor shall deliver to the Trustee, within 120 days after the end of each fiscal year, a written statement (which need not be contained in or accompanied by an Officers’ Certificate) signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company or the Guarantor, as the case may be, stating that
(i) a review of the activities of the Company or the Guarantor, as the case may be, during such year and of its performance under this Indenture has been made under his or her supervision, and
(ii) to the best of his or her knowledge, based on such review, (A) the Company or the Guarantor, as the case may be, has complied with all the conditions and covenants imposed on it under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such condition or covenant, specifying each such default known to him or her and the nature and status thereof, and (B) no event has occurred and is continuing which is, or after notice or lapse of time or both would become, an Event of Default, or, if such an event has occurred and is continuing, specifying each such event known to him and the nature and status thereof.
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(b) The Company shall deliver to the Trustee, within five days after the occurrence thereof, written notice of any Event of Default or any event which after notice or lapse of time or both would become an Event of Default pursuant to clause (d) of Section 5.01.
(c) The Trustee shall have no duty to monitor the Company’s compliance with the covenants contained in this Article 10 other than as specifically set forth in this Section 10.07.
Section 10.08. Calculation of Original Issue Discount. The Company shall file with the Trustee promptly at the end of each calendar year (a) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on any Outstanding Original Issue Discount Securities as of the end of such year and (b) such other specific information relating to such original issue discount as may then be relevant under the Code, as amended from time to time.
ARTICLE 11
Redemption of Securities
Section 11.01. Applicability of Article. Redemption of Securities of any series as permitted or required by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.
Section 11.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of (a) less than all of the Securities of any series or (b) all of the Securities of any series, with the same issue date, interest rate or formula, Stated Maturity and other terms, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the principal amount of Securities of such series to be redeemed; provided that, the Trustee shall be given at least 15 days’ notice prior to sending the notice of redemption (unless a shorter notice shall be satisfactory to the Trustee).
Section 11.03. Selection by Trustee of Securities to Be Redeemed. If less than all of the Securities of any series with the same issue date, interest rate or formula, Stated Maturity and other terms are to be redeemed, the particular Securities to be redeemed (i) in the case of Securities in physical form, shall be selected (in principal face amounts of $2,000 and integral multiples of $1,000 in excess thereof) not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series not previously called for redemption, by lot or (ii) in the case of Securities in global form, shall be selected by the Depository pursuant to the applicable procedures of the Depository; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the related Series Authorization of any series, if any Security selected for partial redemption is converted into Common Stock of the Company or exchanged for other securities in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
Section 11.04. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.06, not less than 15 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price (or, if not then determinable, the methodology for determining the Redemption Price),
(c) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed,
(d) in case any Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(e) that, on the Redemption Date, subject to any required regulatory approval or the satisfaction of any other specified regulatory condition, the Redemption Price shall become due and payable upon each such Security or portion thereof to be redeemed, in the case of a Registered Security, together with any accrued interest and Additional Amounts pertaining thereto, and that unless the Company shall default in the payment of the Redemption Price and other amounts then due, interest thereon, if applicable, shall cease to accrue on and after said date,
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(f) the place or places where such Securities, together (in the case of Bearer Securities) with all Coupons appertaining thereto, if any, maturing on or after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto,
(g) that the redemption is for a sinking fund, if such is the case,
(h) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered for redemption must be accompanied by all Coupons maturing subsequent to the date fixed for redemption or the amount of any such missing Coupon or Coupons will be deducted from the Redemption Price, unless security or indemnity satisfactory to the Company, the Trustee and any Paying Agent is furnished,
(i) if Bearer Securities of any series are to be redeemed and no Registered Securities of such series are to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to redemption on the Redemption Date pursuant to Section 3.05 or otherwise, the last date, as determined by the Company, on which such exchanges may be made,
(j) in the case of Securities of any series that are convertible into or exchangeable for other securities, the conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate and the place or places where such Securities may be surrendered for conversion or exchange, and
(k) the CUSIP number or the Euroclear or the Clearstream reference numbers of such Securities, if any (or any other numbers used by a Depository to identify such Securities).
A notice of redemption published as contemplated by Section 1.06 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
Section 11.05. Deposit of Redemption Price. On or prior to 10:00 a.m., New York City time, on any Redemption Date, the Company shall deposit, with respect to the Securities of any series called for redemption, with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money in the applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 3.01 or in the Securities of such series) any accrued interest on and Additional Amounts with respect thereto, all such Securities or portions thereof which are to be redeemed on that date.
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Section 11.06. Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, subject to any required regulatory approval or the satisfaction of any other specified regulatory condition, become due and payable on the Redemption Date, at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and any accrued interest or Additional Amounts) such Securities shall cease to bear interest and the Coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all Coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date; provided, however, that, except as otherwise provided in or pursuant to the related Series Authorization and the Coupons, installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only upon presentation and surrender of Coupons for such interest (at an Office or Agency located outside the United States except as otherwise provided in Section 10.02), and provided, further, that, except as otherwise specified in or pursuant to the related Series Authorization, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 3.07 and installments of interest on Registered Securities for which the Redemption Date is after a Regular Record Date and on or before the following Interest Payment Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 3.07.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant Coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing Coupons, or the surrender of such missing Coupon or Coupons may be waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such missing Coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted; provided, however, that any interest or Additional Amounts represented by Coupons shall be payable only upon presentation and surrender of those Coupons at an Office or Agency for such Security located outside of the United States except as otherwise provided in Section 10.02.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 11.07. Securities Redeemed in Part. Any Registered Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Security in global form is so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository for such Security in global form as shall be specified in the Company Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered.
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ARTICLE 12
Sinking Funds
Section 12.01. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or the related Series Authorization.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series and this Indenture.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (a) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Company), together in the case of any Bearer Securities of such series with all unmatured Coupons appertaining thereto, and (b) apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, provided that such series of Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 12.02, the principal amount of Securities of such series to be redeemed in order to satisfy the remaining sinking fund payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the written request of the Company from time to time pay over and deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment requested to be released to the Company.
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Section 12.03. Redemption of Securities for Sinking Fund. Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company shall deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 11.06 and Section 11.07.
ARTICLE 13
Repayment at the Option of Holders
Section 13.01. Applicability of Article. Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The repayment of any principal amount of Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 3.09, shall not operate as a payment, redemption or satisfaction of the Indebtedness represented by such Securities unless and until the Company, at its option, shall deliver or surrender the same to the Trustee with a written directive that such Securities be cancelled. Notwithstanding anything to the contrary contained in this Section 13.01, in connection with any repayment of Securities, the Company may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before the close of business on the repayment date an amount not less than the repayment price payable by the Company on repayment of such Securities, and the obligation of the Company to pay the repayment price of such Securities shall be satisfied and discharged to the extent such payment is so paid by such purchasers.
ARTICLE 14
Securities in Foreign Currencies
Section 14.01. Applicability of Article. Whenever this Indenture provides for (a) any action by, or the determination of any of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same Currency, or (b) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series or pursuant to this Indenture or the related Series Authorization, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of the record date with respect to Registered Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such action, determination of rights or distribution) as the Company may specify in a written notice to the Trustee.
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ARTICLE 15
Meetings of Holders of Securities
Section 15.01. Purposes for Which Meetings May Be Called. A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 15.02. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 15.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or, if Securities of such series have been issued in whole or in part as Bearer Securities, in London or in such place outside the United States as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board Resolution) or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 15.01, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 1.06) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in the Borough of Manhattan, The City of New York, or, if Securities of such series are to be issued as Bearer Securities, in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (a) of this Section.
Section 15.03. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (a) a Holder of one or more Outstanding Securities of such series, or (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
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Section 15.04. Quorum; Action. The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for any meeting of Holders of Securities of such series. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any reconvened meeting, such reconvened meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such reconvened meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 15.02(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the Coupons appertaining thereto, whether or not such Holders were present or represented at the meeting.
Section 15.05. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04 or by having the signature of the person executing the proxy witnessed or guaranteed by any trust company, bank or banker authorized by Section 1.04 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 1.04 or other proof.
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(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 15.02(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $2,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 15.02 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 15.06. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports of all votes cast at the meeting. A record of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE 16
Subordination of Securities
Section 16.01. Agreement to Subordinate. The Company covenants and agrees, and each Holder of Securities issued hereunder and under any indenture supplemental hereto or pursuant to a Board Resolution and Officers’ Certificate (“Additional Provisions”) by such Holder’s acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article 16; and each Holder of a Security, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions.
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The payment by the Company of the principal of, any premium and interest on and any Additional Amounts with respect to all Securities of each series issued hereunder and under any Additional Provisions shall, to the extent and in the manner hereinafter set forth and subject to the provisions of the relates Series Authorization, be subordinate in right of payment to the prior payment in full of all Indebtedness of the Company that constitutes Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article 16 shall prevent the occurrence of any default or Event of Default hereunder.
All references in this Article 16 to Holders of Securities shall be deemed to include Holders of Coupons.
Section 16.02. Default on Senior Indebtedness. In the event and during the continuation of any default by the Company in the payment of principal, premium, interest or any other amount due on any Senior Indebtedness with respect to the Securities of any series, or in the event that the maturity of any Senior Indebtedness with respect to the Securities of any series has been accelerated because of a default, then, in either case, no payment shall be made by the Company with respect to the principal (including redemption and sinking fund payments) of, any premium or interest on, or any Additional Amounts with respect to, the Securities of such series or to acquire such Securities (other than pursuant to the conversion of such Securities).
In the event that, notwithstanding the foregoing, any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 16.02, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Indebtedness or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, but only to the extent that the holders of such Senior Indebtedness or Subordinated Indebtedness (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and owing on such Senior Indebtedness and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Senior Indebtedness.
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Section 16.03. Liquidation; Dissolution; Bankruptcy. Upon any payment by the Company or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any total or partial dissolution, winding-up, reorganization, assignment for the benefit of creditors or marshaling of assets of the Company, whether voluntary or involuntary, or in bankruptcy, insolvency, receivership or other similar proceedings relating to the Company or its assets, all amounts due upon all Senior Indebtedness with respect to the Securities of any series shall first be paid in full, or payment thereof provided for in money in accordance with their respective terms, before any payment is made by the Company on account of the principal of, premium or interest on, or Additional Amounts, if any, with respect to, the Securities of such series; and in any such case, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders or the Trustee (on behalf of Holders with respect to the principal of, premium or interest on or Additional Amounts, if any, with respect to, the Securities of such Series) would be entitled to receive from the Company, except for the provisions of this Article 16, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them or it, directly to the holders of such Senior Indebtedness (pro rata to such holders having equal seniority on the basis of the respective amounts of such Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness in full, in money or money’s worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Securities of such series or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing shall be received by the Trustee before all such Senior Indebtedness is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness, as the case may be, or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all such Senior Indebtedness remaining unpaid to the extent necessary to pay such Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article 16, the words “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article 16 with respect to the Securities of the relevant series to the payment of all Senior Indebtedness with respect to the Securities of such series that may at the time be outstanding, provided that (i) such Senior Indebtedness is assumed by the new corporation, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of such Senior Indebtedness are not, without the consent of such holders, altered by such reorganization or readjustment. The consolidation or amalgamation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided for in Article 8 of this Indenture shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 16.03 if such other Person shall, as a part of such consolidation, amalgamation, merger, conveyance or transfer, comply with the conditions stated in Article 8 of this Indenture.
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Section 16.04. Subrogation. Subject to the payment in full of all Senior Indebtedness with respect to the Securities of any series, the rights of the Holders of the Securities of such series shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to such Senior Indebtedness until the principal of, any premium and interest on, and any Additional Amounts with respect to, the Securities of such series shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of such Senior Indebtedness of any cash, property or securities to which the Holders or the Trustee would be entitled except for the provisions of this Article 16, and no payment over pursuant to the provisions of this Article 16 to or for the benefit of the holders of such Senior Indebtedness by Holders of the Securities of such series or the Trustee, shall, as between the Company, its creditors other than holders of such Senior Indebtedness, and the Holders of the Securities of such series, be deemed to be a payment by the Company to or on account of such Senior Indebtedness. It is understood that the provisions of this Article 16 are and are intended solely for the purposes of defining the relative rights of the Holders of the Securities of each series, on the one hand, and the holders of the Senior Indebtedness with respect to the Securities of such series on the other hand.
Nothing contained in this Article 16 or elsewhere in this Indenture, any Additional Provisions or in the Securities of any series is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness with respect to the Securities of such series, and the Holders of the Securities of such series, the obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Securities of such series the principal of, any premium and interest on, and any Additional Amounts with respect to, the Securities of such series as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Holders of the Securities of such series and creditors of the Company, other than the holders of such Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security of such series from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article 16 of the holders of such Senior Indebtedness in respect of cash, property or securities of the Company, as the case may be, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article 16, the Trustee, subject to the provisions of Article 6 of this Indenture, and the Holders shall be entitled to conclusively rely upon any order or decree made by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities of any series, for the purposes of ascertaining the Persons entitled to participate in such distribution, the holders of Senior Indebtedness with respect to the Securities of such series and other Indebtedness of the Company, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 16.
Section 16.05. Trustee to Effectuate Subordination. Each Holder of Securities by such Holder’s acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article 16 and appoints the Trustee such Holder’s attorney-in-fact for any and all such purposes.
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Section 16.06. Notice by the Company. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Company that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Article 16. Notwithstanding the provisions of this Article 16 or any other provision of this Indenture or any Additional Provisions, the Trustee shall not be charged with knowledge of the existence of any facts that would prohibit the making of any payment of monies to or by the Trustee in respect of the Securities of any series pursuant to the provisions of this Article 16, unless and until a Responsible Officer of the Trustee shall have received written notice thereof from the Company or a holder or holders of Senior Indebtedness with respect to the Securities of such series or from any trustee therefor; and before the receipt of any such written notice, the Trustee, subject to the provisions of Article 6 of this Indenture, shall be entitled in all respects to assume that no such facts exist; provided, however, that if the Trustee shall not have received the notice provided for in this Section 16.06 at least two Business Days prior to the date upon which by the terms hereof any money may become payable for any purpose (including, without limitation, the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series), then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such money and to apply the same to the purposes for which they were received, and shall not be affected by any notice to the contrary that may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Article 6 of this Indenture, shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness or Subordinated Indebtedness with respect to the Securities of any series (or a trustee on behalf of such holder), to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee on behalf of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of such Senior Indebtedness to participate in any payment or distribution pursuant to this Article 16, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of such Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article 16, and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the Company referred to in this Article 16, the Trustee and the Holders shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding-up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities of any series, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness with respect to the Securities of such series and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article 16.
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Section 16.07. Rights of the Trustee; Holders of Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article 16 in respect of any Senior Indebtedness with respect to the Securities of any series at any time held by it, to the same extent as any other holder of such Senior Indebtedness, and nothing in this Indenture or any Additional Provisions shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness with respect to the Securities of any series, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article 16, and no implied covenants or obligations with respect to the holders of such Senior Indebtedness shall be read into this Indenture or any Additional Provisions against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of such Senior Indebtedness and, subject to the provisions of Article 6 of this Indenture, the Trustee shall not be liable to any holder of such Senior Indebtedness if it shall pay over or deliver to Holders of the Securities of such series, the Company or any other Person money or assets to which any holder of such Senior Indebtedness shall be entitled by virtue of this Article 16 or otherwise.
Nothing in this Article 16 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.06.
Section 16.08. Subordination May Not Be Impaired. No right of any present or future holder of any Senior Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company, or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Indebtedness with respect to the Securities of any series may, at any time and from time to time, without the consent of or notice to the Trustee or the Holders of Securities of such series, without incurring responsibility to such Holders and without impairing or releasing the subordination provided in this Article 16 or the obligations hereunder of the Holders of the Securities of such series to the holders of such Senior Indebtedness, do any one or more of the following: (a) change the manner, place or terms of payment or extend the time of payment of, or renew or alter, such Senior Indebtedness, or otherwise amend or supplement in any manner such Senior Indebtedness or any instrument evidencing the same or any agreement under which such Senior Indebtedness is outstanding; (b) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing such Senior Indebtedness; (c) release any Person liable in any manner for the collection of such Senior Indebtedness; and (d) exercise or refrain from exercising any rights against the Company and any other Person.
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Section 16.09. Application by Trustee of Assets Deposited With It. Amounts deposited in trust with the Trustee pursuant to and in accordance with this Indenture, including without limitation pursuant to Article 4 hereof, shall be for the sole benefit of the Holders of the Securities and, to the extent allocated for the payment of Securities, shall not be subject to the subordination provisions of this Article 16. Otherwise, any deposit of assets with the Trustee or any Paying Agent (whether or not in trust) for the payment of any Securities shall be subject to the provisions of Sections 16.01, 16.02 and 16.03; provided that, if prior to two Business Days preceding the date on which by the terms of this Indenture any such assets may become distributable for any purpose (including, without limitation, the payment of any amount due on any Security) the Trustee or such Paying Agent shall not have received with respect to such assets the written notice provided for in Section 16.06, then the Trustee or such Paying Agent shall have full power and authority to receive such assets and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such date.
ARTICLE 17
Guarantee
Section 17.01. The Guarantee. The Guarantor hereby unconditionally guarantees to the Trustee and each Holder of a Security authenticated and delivered by the Trustee all obligations of the Company under this Indenture in accordance with the terms of the Subordinated Debt Securities Guarantee Agreement.
Section 17.02. Ranking. Each Holder of Securities issued hereunder agrees that the payment by the Guarantor pursuant to the Guarantee with respect to all Securities of each series issued hereunder, shall be subordinate in right of payment to the extent and in the manner set forth in Sections 6.02 and 6.03 of the Subordinated Debt Securities Guarantee Agreement.
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| PARTNERRE FINANCE B LLC | |||
| By: | /s/ Thomas L. Forsyth | ||
| Name: | Thomas L. Forsyth | ||
| Title: | President & CEO | ||
| PARTNERRE LTD., as Guarantor | |||
| By: | /s/ Nick Burnet | ||
| Name: | Nick Burnet | ||
| Title: | Executive Vice President and Chief Financial Officer | ||
| THE BANK OF NEW YORK MELLON, as Trustee | |||
| By: | /s/ Laurence J. O’Brien | ||
| Name: | Laurence J. O’Brien | ||
| Title: | Vice President | ||
Exhibit 4.2
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 22, 2020
Between
PARTNERRE FINANCE B LLC,
Issuer
PARTNERRE LTD.,
Guarantor
to
THE BANK OF NEW YORK MELLON
Trustee
TABLE OF CONTENTS
| Page | ||
| Article 1 | ||
| DEFINITIONS | ||
| Section 1.01 | Definitions of Terms | 1 |
| Article 2 | ||
| GENERAL TERMS AND CONDITIONS OF THE NOTES | ||
| Section 2.01 | Designation and Principal Amount | 6 |
| Section 2.02 | Further Issues | 6 |
| Section 2.03 | Form and Payment | 6 |
| Section 2.04 | Payment of Principal | 7 |
| Section 2.05 | Interest Rate | 7 |
| Section 2.06 | Payment of Interest | 7 |
| Section 2.07 | Arrears of Interest | 7 |
| Section 2.08 | Mandatory Deferral | 8 |
| Section 2.09 | Optional Deferral of Interest Payments | 8 |
| Section 2.10 | Variation and Substitution of the Notes | 9 |
| Section 2.11 | No Payment of Additional Amounts | 10 |
| Section 2.12 | Calculation Agent | 10 |
| Article 3 | ||
| REPAYMENT AND REDEMPTION OF THE NOTES | ||
| Section 3.01 | Repayment at Final Maturity Date | 10 |
| Section 3.02 | Optional Redemption | 11 |
| Section 3.03 | Specified Event Redemption of the Notes. | 11 |
| Section 3.04 | BMA Redemption Requirements | 12 |
| Article 4 | ||
| NO SINKING FUND | ||
| Section 4.01 | No Sinking Fund | 13 |
| Article 5 | ||
| FORM OF NOTE | ||
| Section 5.01 | Form of Note | 13 |
| Article 6 | ||
| ORIGINAL ISSUE OF NOTES | ||
| Section 6.01 | Original Issue of Notes | 17 |
| Article 7 | ||
| EVENTS OF DEFAULT | ||
| Section 7.01 | Events of Default | 18 |
| Section 7.02 | Acceleration of Maturity; Rescission and Annulment | 19 |
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| Article 8 | ||
| COVENANTS | ||
| Section 8.01 | Activities of the Company | 19 |
| Section 8.02 | Use of Proceeds | 19 |
| Section 8.03 | Proper Records | 19 |
| Section 8.04 | Compliance with Laws | 20 |
| Section 8.05 | Reserved | 20 |
| Section 8.06 | Dividend and Other Payment Stoppages During Deferral Periods | 20 |
| Article 9 | ||
| MODIFICATION AND WAIVER | ||
| Section 9.01 | Modification and Waiver | 20 |
| Article 10 | ||
| ADDITIONAL TERMS | ||
| Section 10.01 | Additional Terms | 21 |
| Section 10.02 | No Rights of Set-off; No Encumbrances | 21 |
| Section 10.03 | Contractual Subordination | 21 |
| Section 10.04 | Agreement to Certain Tax Treatment | 21 |
| Article 11 | ||
| MISCELLANEOUS | ||
| Section 11.01 | Ratification of Indenture | 21 |
| Section 11.02 | Trustee Not Responsible for Recitals | 21 |
| Section 11.03 | Governing Law | 21 |
| Section 11.04 | Separability | 21 |
| Section 11.05 | Counterparts | 21 |
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FIRST SUPPLEMENTAL INDENTURE, dated as of September 22, 2020 (the “First Supplemental Indenture”), among PartnerRe Finance B LLC, a limited liability company duly organized and existing under the laws of the State of Delaware (the “Company”), PartnerRe Ltd., a company duly organized and existing under the laws of Bermuda (the “Guarantor”), and The Bank of New York Mellon, a New York banking corporation, as trustee (the “Trustee”), amending and supplementing the Subordinated Debt Securities Indenture among the Company, the Guarantor and the Trustee, dated as of September 22, 2020 (the “Base Indenture”).
WHEREAS, the Company has executed and delivered the Base Indenture to the Trustee to provide for the future issuance of the Company’s subordinated unsecured debentures, notes or other evidence of subordinated unsecured indebtedness (the “Securities”), to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture;
WHEREAS, Section 3.01 of the Base Indenture provides that, with respect to any series of Securities to be authenticated and delivered under the Base Indenture, the terms of such series of Securities shall be established by (i) a Board Resolution and Officers’ Certificate or (ii) one or more indentures supplemental to the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, as amended or supplemented by this First Supplemental Indenture (the “Indenture”), the Company desires to provide for the establishment of a new series of its Securities to be known as its 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (the “Notes”), which shall be in the form of junior subordinated unsecured notes, with specific terms and provisions, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture, and all requirements necessary to make this First Supplemental Indenture a valid, legally binding instrument in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid, legally binding obligations of the Company, have been done and performed, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in this Indenture, the form and substance of the Notes and the terms, provisions and conditions thereof, it is mutually covenanted and agreed as follows:
Article 1
DEFINITIONS
Section 1.01 Definitions of Terms. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Base Indenture has the same meaning when used in this First Supplemental Indenture;
(b) the definition of any term in this First Supplemental Indenture that is also defined in the Base Indenture shall supersede the definition of such term in the Base Indenture;
(c) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout;
(d) the singular includes the plural and vice versa;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this Section 1.01(f):
“Applicable Supervisory Regulations” means such insurance supervisory laws, rules and regulations relating to group supervision or the supervision of single insurance entities, as applicable, which are applicable to the Guarantor or the Insurance Group and which shall initially mean the Group Solvency Standards, together with the Group Supervision Rules, as those rules and regulations may be amended or replaced from time to time (the “Group Rules”) until such time when the BMA no longer has jurisdiction or responsibility to regulate the Guarantor or the Insurance Group. If any provision of the Applicable Supervisory Regulations referred to in the Indenture or in the Notes in connection with any requirements applying to the Guarantor and/or the Insurance Group is amended or replaced so that there is no corresponding provision in the amended or replacement measures, (i) if the requirement concerned is entirely dependent on the existence of such a corresponding provision, the requirement shall cease to apply and (ii) if the requirement concerned is partially dependent on the existence of such a corresponding provision, the requirement shall be deemed modified so that all parts of that requirement solely dependent on that provision shall cease to apply; provided, in each case, that holders of the Notes are not adversely affected thereby.
“Arrears of Interest” has the meaning set forth in Section 2.07.
“Base Indenture” has the meaning set forth in the preamble of this First Supplemental Indenture.
“BMA” means the Bermuda Monetary Authority, or, should the Bermuda Monetary Authority no longer have jurisdiction or responsibility to regulate the Guarantor or the Insurance Group, as the context requires, a regulator that administers the Applicable Supervisory Regulations.
“BMA Approval” means the BMA has given, and not withdrawn by the applicable Redemption Date, its prior consent to the redemption of such Notes.
“BMA Redemption Requirements” has the meaning set forth in Section 3.04(a).
“Calculation Agent” means, at any time, the Person appointed by the Company and that has accepted such appointment to serve as such agent with respect to the Notes at such time.
A “Capital Disqualification Event” has occurred if the Notes cease to qualify, in whole or in part (including as a result of any transitional or grandfathering provisions or otherwise), for purposes of determining the solvency margin, capital adequacy ratios or any other comparable ratios, regulatory capital resource or level, of the Company or the Insurance Group, where capital is subdivided into tiers, as Tier 2 ancillary capital under then-applicable Applicable Supervisory Regulations imposed upon the Company by the BMA, which would include, without limitation, the Enhanced Capital Requirement, except as a result of any applicable limitation on the amount of such capital.
“Capital Efficient Notes” means the Junior Subordinated Capital Efficient Notes due 2066 issued by PartnerRe Finance II Inc.
“capital stock” has the meaning forth in Section 3.05(a).
“Company” has the meaning set forth in the preamble of this First Supplemental Indenture.
“Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed if the Notes matured on the first day of the next Par Call Period.
“Comparable Treasury Price” means (i) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (ii) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“ECR” means the enhanced capital and surplus requirement applicable to the Insurance Group and as defined in the Insurance Act, or, should the Insurance Act or the Group Rules no longer apply to the Insurance Group, any and all other solvency capital requirements defined in the Applicable Supervisory Regulations.
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“Enhanced Capital Requirement” means the ECR or any other requirement to maintain assets applicable to the Guarantor or in respect of the Insurance Group, as applicable, pursuant to the Applicable Supervisory Regulations.
“Event of Default” has the meaning forth in Section 8.01.
“Final Maturity Date” means (1) the Scheduled Maturity Date, if, on the Scheduled Maturity Date, the BMA Redemption Requirements are satisfied, or (2) otherwise, following the Scheduled Maturity Date, the earlier of (a) the date falling 10 Business Days after the BMA Redemption Requirements are satisfied and would continue to be satisfied if such payment were made and (b) the date on which a Winding-Up of the Company or the Guarantor occurs.
“First Reset Date” means October 1, 2030.
“First Supplemental Indenture” has the meaning set forth in the preamble of this First Supplemental Indenture.
“Five-Year Treasury Rate” means, as of any Reset Interest Determination Date, as applicable, (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published H.15, with a maturity of five years from the next Reset Date and trading in the public securities market or (2) if there is no such published U.S. Treasury security with a maturity of five years from the next Reset Date and trading in the public securities markets, the rate will be determined by the Calculation Agent by interpolation or extrapolation on a straight line basis between the most recent weekly average yield to maturity for two series of U.S. Treasury securities trading in the public securities market, (A) one maturing as close as possible to, but earlier than, the Reset Date following the next succeeding Reset Interest Determination Date, and (B) the other maturity as close as possible to, but later than, the Reset Date following the next succeeding Reset Interest Determination Date, in each case as published in the most recently published H.15. If the Five-Year Treasury Rate cannot be determined pursuant to the methods described in clauses (1) or (2) above, then the Five-Year Treasury Rate will be the same interest rate as in effect for the prior period.
“Group Rules” has the meaning set forth in the definition of “Applicable Supervisory Regulations”.
“Group Solvency Standards” means the Bermuda Insurance (Prudential Standards) (Insurance Group Solvency Requirement) Rules 2011, as those rules and regulations may be amended or replaced from time to time.
“Group Supervision Rules” means the Bermuda Insurance (Group Supervision) Rules 2011, as those rules and regulations may be amended or replaced from time to time.
“Guarantor” has the meaning set forth in the preamble of this First Supplemental Indenture.
“H.15” means the weekly statistical release designated as such, or any successor publication, published by the Board of Governors of the United States Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities.”
“Indenture” has the meaning set forth in the preamble of this First Supplemental Indenture.
“Independent Investment Banker” means any one of Wells Fargo Securities, LLC, Barclays Capital Inc., BofA Securities, Inc. and their successors, as specified by the Company, or, if none of such firms is willing or able to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
“Insurance Act” means the Bermuda Insurance Act 1978 and related regulations, as amended or replaced from time to time.
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“Insurance Group” means all subsidiaries of the Guarantor that are regulated insurance or reinsurance companies (or part of such regulatory group) pursuant to the Applicable Supervisory Regulations.
“Interest Payment Date” has the meaning forth in Section 2.06.
A “Mandatory Deferral Event” shall be deemed to have occurred if the Guarantor or the Insurance Group is in breach of the Enhanced Capital Requirement, or would breach the Enhanced Capital Requirement if payment of accrued and unpaid interest on the Notes, together with any accrued and unpaid interest on any junior subordinated notes outstanding that are issued or guaranteed by the Guarantor and for which such notes or guarantee, as the case may be, rank equally in right of payment with the guarantees of the Notes, were made.
“Mandatory Deferral Period” means the period beginning on an Interest Payment Date with respect to which the Company and the Guarantor defer payment of interest when a Mandatory Deferral Event has occurred and is continuing and ending on the next Interest Payment Date on which a Mandatory Deferral Event would no longer constrain the payment of any accrued interest, the payment of which has been deferred, by the Company or the Guarantor.
“Notes” has the meaning set forth in the recitals of this First Supplemental Indenture.
“Optional Deferral Expiration Date” means (i) the fifth anniversary of the date on which an Optional Deferral Period commences or (ii) if payment of interest on the fifth anniversary as described under (i) would cause the Company or the Guarantor to breach the indenture governing the Capital Efficient Notes or the guarantees thereof, the next Interest Payment Date at which payment of interest would not cause the Company or the Guarantor to breach the indenture governing the Capital Efficient Notes or the guarantees thereof; provided, however, that such date will not occur later than the tenth anniversary of the first deferred Interest Payment Date in the applicable Optional Deferral Period.
“Optional Deferral Period” means the period beginning on an Interest Payment Date with respect to which the Company or the Guarantor defers payment of interest, either at its option or as a result of a Mandatory Deferral Event occurring during the applicable Optional Deferral Period, and ending on the earlier of (x) the next Interest Payment Date on which the Company or the Guarantor has paid all Arrears of Interest (including compounded interest on such deferred amounts), and (y)(i) if no Mandatory Deferral Event has occurred and is continuing on the Optional Deferral Expiration Date, the Optional Deferral Expiration Date, or (ii) if a Mandatory Deferral Event has occurred and is continuing on the Optional Deferral Expiration Date, the date on which the resulting Mandatory Deferral Period ends.
“Par Call Period” means the period from, and including, April 1 of each year in which there is a Reset Date to, and including, October 1 of such year.
“Primary Treasury Dealer” has the meaning set forth in the definition of “Reference Treasury Dealer”.
“Qualifying Equivalent Securities” has the meaning set forth in Section 2.08(d).
“Rating Agency” has the meaning set forth in the definition of “Rating Agency Event”.
A “Rating Agency Event” shall be deemed to have occurred if any nationally recognized statistical rating organization, as defined in Section 3(a)(62) of the Exchange Act, that then publishes a rating for the Guarantor (a “Rating Agency”) amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the Notes, which amendment, clarification or change results in (1) the shortening of the length of time the Notes are assigned a particular level of equity credit by that Rating Agency as compared to the length of time they would have been assigned that level of equity credit by that Rating Agency or its predecessor on the initial issuance of the Notes; or (2) the lowering of the equity credit (including up to a lesser amount) assigned to the Notes by that Rating Agency as compared to the equity credit assigned by that Rating Agency or its predecessor on the initial issuance of the Notes.
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“Reference Treasury Dealer” means each of (i) Wells Fargo Securities, LLC, Barclays Capital Inc., BofA Securities, Inc. and their respective successors and (ii) two other primary U.S. government securities dealers (each a “Primary Treasury Dealer”), as specified by the Company; provided, that (1) if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer and (2) if the Company fails to select a substitute within a reasonable period of time, then the substitute will be a Primary Treasury Dealer selected by the Independent Investment Banker after consultation with the Company.
“Reference Treasury Dealer Quotation” means, with respect to a Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such Redemption Date.
“Regular Record Date” means, with respect to the Notes only, the close of business on March 15 and September 15, as the case may be, immediately preceding each Interest Payment Date.
“Reset Date” means the First Reset Date and each date falling on the fifth anniversary of the preceding Reset Date.
“Reset Interest Determination Date” means, in respect of any Reset Period, the day falling two Business Days prior to the beginning of such Reset Period.
“Reset Period” means the period from and including the First Reset Date to, but excluding, the next following Reset Date and thereafter each period from and including each Reset Date to, but excluding, the next following Reset Date.
“Scheduled Maturity Date” means October 1, 2050.
“Securities” has the meaning set forth in the recitals of this First Supplemental Indenture.
A “Tax Event” shall be deemed to have occurred with respect to the Notes if an opinion of a recognized independent tax counsel has been delivered to the trustee stating that, as a result of: (i) any amendment to, clarification of, or change, including any announced prospective change, in the laws or treaties of any Taxing Jurisdiction, or any regulations under those laws or treaties; (ii) an administrative action with respect to a Taxing Jurisdiction, which means any judicial decision or any official administrative pronouncement, ruling, regulatory procedure, notice or announcement including any notice or announcement of intent to issue or adopt any administrative pronouncement, ruling, regulatory procedure or regulation; (iii) any amendment to, clarification of, or change in the official position or the interpretation of any administrative action or judicial decision or any interpretation or pronouncement that provides for a position with respect to an administrative action or judicial decision that differs from the previously generally accepted position, in each case by any legislative body, court, governmental authority or regulatory body in a Taxing Jurisdiction, regardless of the manner in which that amendment, clarification or change is introduced or made known; or (iv) a threatened challenge asserted in writing in connection with an audit of the Company or the Guarantor or any of their subsidiaries, or a publicly-known threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the Notes, in each case, which amendment, clarification or change is effective or the administrative action is taken or judicial decision, interpretation or pronouncement is issued or threatened challenge is asserted or becomes publicly-known after the date of the original issuance of the Notes, there is more than an insubstantial risk that interest payable by the Company or the Guarantor, as applicable, in respect of the Notes is no longer, or within 90 days of the date of the opinion will no longer be, fully deductible by the Company or the Guarantor, as applicable, for income tax purposes in the applicable Taxing Jurisdiction, and that non-deductibility cannot be avoided by the Company or the Guarantor, as applicable, taking such reasonable measures as it (acting in good faith) deems appropriate.
“Taxing Jurisdiction” means the United States, the State of Delaware or Bermuda, or any political subdivision thereof, or any authority or agency therein having the power to tax, or any other jurisdiction from or through which the Company or the Guarantor makes a payment on the Notes or the guarantees thereof or in which the Company or the Guarantor generally becomes subject to taxation, or any jurisdiction in which a successor of the Company or the Guarantor is formed.
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“Tier 2 Capital” means Tier 2 Ancillary Capital under the Group Supervision Rules or, if the Group Supervision Rules are amended so as to no longer refer to Tier 2 Ancillary Capital in this respect, the nearest corresponding concept (if any) under the Group Supervision Rules, as amended.
“Treasury Rate” means (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published H.15 for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the remaining term of the Notes (assuming the Notes matured on the first day of the next Par Call Period), yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated by the Company using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated by the Company on the third Business Day preceding the Redemption Date.
“Trustee” shall have the meaning set forth in the preamble of this First Supplemental Indenture.
A “Winding-Up” will occur, with respect to any person, if: (i) at any time an order is made, or an effective resolution is passed, for the winding-up of such person (except, in any such case, a solvent winding-up solely for the purpose of a reorganization, merger or amalgamation or the substitution in place of such person of a successor in business of such person, the terms of which reorganization, merger, amalgamation or substitution (A) have previously been approved in writing by the trustee or by holders of a majority in aggregate principal amount of the outstanding notes and (B) do not provide that the Notes or any amount in respect thereof shall thereby become payable); or (ii) an administrator of such person is appointed and such administrator gives notice that it intends to declare and distribute a dividend.
Article 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.01 Designation and Principal Amount. There is hereby authorized a series of Securities designated the 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050, which shall be in the form of junior subordinated unsecured notes issued by the Company under this Indenture, unlimited in aggregate principal amount.
Section 2.02 Further Issues. So long as no Event of Default or Mandatory Deferral Event shall have occurred and be continuing with respect to the Notes at the time of such issuance, the Company may, from time to time, subject to compliance with any other applicable provisions of this First Supplemental Indenture but without the consent of the Holders, issue an unlimited principal amount of additional Notes having identical terms as the Notes offered hereby, other than issue date, issue price and, if applicable, the first interest payment date and first interest accrual date (the “additional Notes”) and which will be deemed to be in the same series as the Notes offered hereby. Any additional Notes will be part of the same issue as the Notes being offered hereby and the Notes and any additional Notes will be treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments and redemptions; provided that if any additional Notes are not fungible with the Notes offered hereby for U.S. federal income tax purposes, they will be issued with a separate CUSIP number.
Section 2.03 Form and Payment Notes shall be issued in fully registered certificated form without interest coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof, bearing identical terms. Principal and interest on the Notes issued in certificated form will be payable, the transfer of such Notes will be registrable and such Notes will be exchangeable for Notes bearing identical terms and provisions at the Corporate Trust Office of the Trustee.
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Section 2.04 Payment of Principal. The principal of the Notes shall be due on Final Maturity Date. If the Final Maturity Date is not a Business Day, payment of principal and interest to be made on the Final Maturity Date shall be made on the next Business Day (but no interest shall accrue as a result of such postponement).
Section 2.05 Interest Rate. The Notes will bear interest (i) from the Original Issue Date to, but excluding, the First Reset Date at the fixed rate of 4.500% per annum and (ii) from, and including, the First Reset Date, during each Reset Period, at a rate per annum equal to the Five-Year Treasury Rate as of the most recent Reset Interest Determination Date plus 3.815% to be reset on each Reset Date. Promptly upon receiving notice of the Calculation Agent’s determination of the interest rate for the relevant Reset Period, the Company shall promptly notify the Trustee and paying agent in writing of the interest rate for the relevant Reset Period. The Calculation Agent’s determination of any interest rate and its calculation of the amount of interest for any Reset Period beginning on or after the First Reset Date will be on file at the Company’s offices as set forth in Section 1.05 of the Base Indenture, will be made available to any Holder of the Notes upon request and will be final and binding in the absence of manifest error.
Section 2.06 Payment of Interest. Subject to Section 2.08 and Section 2.09, accrued interest on the Notes shall be payable semi-annually in arrears on April 1 and October 1 of each year, commencing on April 1, 2021, and on the Final Maturity Date (each such date, an “Interest Payment Date”).
Section 2.07 Arrears of Interest.
(a) Any interest in respect of the Notes not paid on an Interest Payment Date, together with any interest in respect of the Notes not paid on an earlier Interest Payment Date will, so long as the same remains unpaid, constitute “Arrears of Interest” in respect of the Notes, which includes any accrued interest in respect of the Notes, the payment of which is so deferred, so long as such interest remains unpaid. Arrears of Interest shall be cumulative and bear interest at the interest rate then payable on the Notes (such cumulative interest also constituting Arrears of Interest). Arrears of Interest on the Notes will remain outstanding, and will accumulate interest, for so long as they remain unpaid. Any references in the Indenture, this First Supplemental Indenture or the Notes to “accrued and unpaid interest” shall include any Arrears of Interest. The Trustee shall not be responsible for calculating any Arrears of Interest.
(b) So long as no Event of Default or Mandatory Deferral Event has occurred and is continuing, at the Company’s option, Arrears of Interest on the Notes may be paid in whole or in part to the persons in whose names the Notes are registered as of the close of business on the 15th calendar day (whether or not such date is a Business Day) immediately preceding the date on which payment of such Arrears of Interest is to be made, at any time upon the expiration of not more than 15 nor less than five Business Days’ written notice to the Trustee, the paying agent and the Holders of the Notes to such effect (which written notice shall specify the amount of such Arrears of Interest).
(c) If not previously paid, Arrears of Interest with respect to the Notes shall become due and payable, and shall be paid in whole (and not in part), on the earliest of:
(i) so long as no Event of Default or Mandatory Deferral Event has occurred and is continuing, and subject to the right of the Company and the Guarantor to optionally defer payment of interest as provided under Section 2.09, the next Interest Payment Date for the Notes;
(ii) the date of redemption of the Notes in accordance with Article 3;
(iii) the date on which a Winding-Up of the Company or the Guarantor occurs; or
(iv) the Final Maturity Date for the Notes;
provided that, in the event of there being Arrears of Interest on the Final Maturity Date, such Arrears of Interest shall be paid before any repayment of principal.
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Section 2.08 Mandatory Deferral.
(a) If, as of any Interest Payment Date, a Mandatory Deferral Event has occurred and is continuing, the Company and the Guarantor shall be required to defer payment of all (and not less than all) of the interest accrued on the Notes as of such Interest Payment Date. Accrued and unpaid interest will be due and payable at the end of a Mandatory Deferral Period, subject to the right of the Company and the Guarantor to continue deferral of payments as provided under Section 2.09. Any accrued interest under this Section 2.08, the payment of which is so deferred, so long as such interest remains unpaid, will constitute Arrears of Interest and will be subject to Section 2.07.
(b) Prior to the first Interest Payment Date during the Mandatory Deferral Period, the Company shall provide to the Trustee an Officers’ Certificate identifying the beginning of the Mandatory Deferral Period and shall notify the Holders of the Notes at least 10 Business Days before the first Interest Payment Date during the Mandatory Deferral Period, unless the Mandatory Deferral Event occurs within such period, in which case the Company shall so notify the Holders of the Notes promptly following the occurrence of such Mandatory Deferral Event. Thereafter, the Company shall give Holders of the Notes and the Trustee written notice of the continuation of a Mandatory Deferral Period at least three and not more than 60 Business Days before the next Interest Payment Date, so long as the Mandatory Deferral Period is continuing at such next Interest Payment Date.
(c) Notwithstanding any other provision in the Notes or the Indenture, the deferral resulting from a Mandatory Deferral Event will constitute neither an Event of Default under the Indenture nor a default of any kind, and will not give Holders of the Notes or the trustee any right to accelerate repayment of the Notes or any other remedies.
Section 2.09 Optional Deferral of Interest Payments.
(a) Subject to Section 2.09(c), so long as no Event of Default has occurred and is continuing, the Company and the Guarantor may elect at one or more times to defer payment of interest on the Notes for one or more consecutive interest periods that do not exceed five years from the date of commencement of the Optional Deferral Period; provided that, in the event that a failure to defer payment of interest on the Notes at the conclusion of such five-year period would cause the Company or the Guarantor to breach the terms of the indenture governing the Capital Efficient Notes or the guarantees thereof, that Optional Deferral Period may be extended by the Company or the Guarantor until the earlier of the date on which payments of interest on the Notes would no longer result in such a breach and the date that is ten years from the date of commencement of the Optional Deferral Period, in each case for a single Optional Deferral Period. Any interest so deferred shall constitute Arrears of Interest. Interest may not be optionally deferred beyond the Final Maturity Date, or any earlier accelerated maturity date arising from an Event of Default or any other earlier redemption of the Notes.
(b) If not previously paid, at the end of an Optional Deferral Period, the Company or the Guarantor must pay all Arrears of Interest arising from such Optional Deferral Period. If the Company or the Guarantor has at any time paid all Arrears of Interest on the Notes, including compounded interest on such deferred amounts, the Company and the Guarantor can again elect to optionally defer interest payments on the Notes pursuant to paragraph (a) of this Section 2.09.
(c) For the avoidance of doubt, if a Mandatory Deferral Period occurs during an Optional Deferral Period (including if such Mandatory Deferral Period and Optional Deferral Period begin on the same Interest Payment Date), and such Mandatory Deferral Period ceases to be continuing prior to the next Optional Deferral Expiration Date, then the Company and the Guarantor may continue to elect to optionally defer interest following the conclusion of such intervening Mandatory Deferral Period until the next Optional Deferral Expiration Date. If a Mandatory Deferral Event has occurred and is continuing on an Optional Deferral Expiration Date (including if a separate Mandatory Deferral Period had previously begun and ended during such Optional Deferral Period), the Optional Deferral Period will continue until such time that a Mandatory Deferral Event is no longer continuing. No provisions of this section shall limit the ability or obligations of the Company or the Guarantor to defer either interest payments or repayment of Arrears of Interest if a Mandatory Deferral Event has occurred and is continuing.
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(d) The Company or the Guarantor will give the Holders of the Notes and the Trustee written notice of their election to commence or continue an Optional Deferral Period at least three and not more than 60 Business Days before the initial scheduled Interest Payment Date of an Optional Deferral Period and, thereafter, before each subsequent Interest Payment Date during the Optional Deferral Period.
Section 2.10 Variation and Substitution of the Notes.
(a) If a Capital Disqualification Event, Rating Agency Event or Tax Event occurs, the Company may, as an alternative to redemption of the Notes, at any time, without the consent of any Holder, vary any term or condition of the Notes or substitute all (but not less than all) of the Notes for other notes, so that the varied Notes or the substituted notes, as the case may be, become Qualifying Equivalent Securities.
(b) In the event of a substitution pursuant to this Section 2.10, the principal amount of the Qualifying Equivalent Securities to be received by Holders in substitution shall be equal to the principal amount of the Notes substituted. In connection with the substitution of Qualifying Equivalent Securities for the relevant Notes or the variation of the terms of the relevant Notes, each Noteholder by the purchase of the relevant Notes authorizes the Trustee to, and the Trustee shall, authenticate such new notes in accordance with the Indenture.
(c) Any variation or substitution of the Notes is subject to no more than 60 nor less than 30 calendar days’ prior notice by the Company to the Holders (which notice shall be irrevocable and shall specify the date fixed for such variation or substitution) in accordance with the notice provisions governing the Notes and to:
(i) the Guarantor being in compliance with the Applicable Supervisory Regulations on the date of such variation or substitution (after giving effect to such variation or substitution), and such variation or substitution not resulting directly or indirectly in a breach of the Applicable Supervisory Regulations;
(ii) the Company complying with the rules of any stock exchange (or any other relevant authority) on which the Company has had its notes listed or admitted to trading;
(iii) in respect of substitution only, all payments of interest, including Arrears of Interest, and any other amount payable under the Notes that, in each case, has accrued to Holders of the Notes and has not been paid, being satisfied in full on or prior to the date thereof; and
(iv) immediately after the substitution or variation not triggering the right on the Company’s part to redeem the Notes pursuant to Section 3.03(a).
(d) “Qualifying Equivalent Securities” means securities which have terms not materially less favorable to the Holders than the Notes, as reasonably determined by the Company or the Guarantor in consultation with an independent investment bank, consulting firm or comparable expert of international standing on the subject, and which:
(i) satisfy the criteria for the eligibility for inclusion of the proceeds of the Notes, under the Applicable Supervisory Regulations;
(ii) contain terms providing for the same interest rate and Interest Payment Dates applying to the Notes;
(iii) rank senior to or have the same ranking as the Notes;
(iv) preserve all obligations as to repayment of the Notes, including (without limitation) as to timing of such repayment (including preserving the same Scheduled Maturity Date and Final Maturity Date);
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(v) do not contain terms providing for loss absorption through principal write-down or conversion to ordinary shares; and
(vi) preserve any rights to any accrued and unpaid interest, and any existing rights to other amounts payable under the Notes which has accrued to Holders and not been paid.
(e) The Company shall deliver to the Trustee on the date fixed for any such variation or substitution an Officers’ Certificate, upon which the Trustee shall be permitted to conclusively rely, stating that all conditions precedent hereunder to such variation or substitution, including, without limitation, the conditions set forth in Section 2.10(c), have been complied with.
Section 2.11 No Payment of Additional Amounts. The Company will not be required to pay any Additional Amounts with respect to the Notes.
Section 2.12 Calculation Agent. Unless the Company has validly redeemed all Outstanding Notes on or before the First Reset Date, the Company will appoint a Person as Calculation Agent with respect to the Notes prior to the Reset Interest Determination Date preceding the First Reset Date. The Company may appoint itself or an affiliate as Calculation Agent. The Company may, in its sole discretion, remove the Calculation Agent in accordance with the agreement between the Company and the Calculation Agent; provided that the Company shall appoint a successor Calculation Agent who shall accept such appointment prior to the effectiveness of such removal; provided, further, that the Company shall promptly notify the Trustee in writing of the appointment of a Calculation Agent and of any removal of a Calculation Agent.
Article 3
REPAYMENT AND REDEMPTION OF THE NOTES
Pursuant to Section 3.01(j) and Section 11.01 of the Base Indenture, the provisions of this Article 3 shall apply to the Notes and shall, with respect of the Notes, supersede and replace the provisions of Article 11 of the Base Indenture in their entirety as follows:
Section 3.01 Repayment at Final Maturity Date
(a) Unless previously redeemed or purchased and cancelled, the Notes shall become finally due and payable, and shall be repaid, on the Final Maturity Date at a price equal to the principal amount thereof, together with accrued and unpaid interest on the Notes to, but excluding, the Final Maturity Date.
(b) The Company shall notify the Trustee and the Holders of the Notes in writing not less than 10 Business Days prior to the Scheduled Maturity Date (or as soon as reasonably practicable if the BMA Redemption Requirements are no longer satisfied as of a date less than 10 Business Days prior to the Scheduled Maturity Date) if the BMA Redemption Requirements will not be satisfied on the Scheduled Maturity Date, which written notice shall state the cause of the failure to satisfy such conditions, and the repayment of the Notes shall be deferred until such time as the BMA Redemption Requirements are satisfied. In such event, the Company shall, not more than 10 Business Days following the satisfaction of the BMA Redemption Requirements, notify the Trustee in writing that the BMA Redemption Requirements have been satisfied and of the Final Maturity Date (which the Trustee shall promptly disseminate to the Holders of the Notes), which Final Maturity Date shall be no earlier than three Business Days after the date on which notice of the Final Maturity Date has been given to the Trustee and no later than the 15th Business Day following the date the BMA Redemption Requirements were satisfied. If at any time following the date of such written notice and prior to the stated repayment date the BMA Redemption Requirements are no longer satisfied, the above notice provisions shall again apply.
(c) In the event the Scheduled Maturity Date and the Final Maturity Date are not the same, failure to repay the Notes on the Scheduled Maturity Date will constitute neither an Event of Default nor a default of any kind and will not give Holders of the Notes or the Trustee any right to accelerate repayment of the note the Notes or any other remedies.
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Section 3.02 Optional Redemption.
(a) Subject to Section 3.04(a), at any time not during a Par Call Period, and provided that the BMA Redemption Requirements have been satisfied and will continue to be satisfied if the optional redemption payment were made on the Notes, the Company may redeem the Notes, in whole at any time or in part (equal to $2,000 and integral multiples of $1,000 in excess thereof), at the Company’s option, at a redemption price equal to the greater of: (A) 100% of the principal amount of the Notes to be redeemed, and (B) an amount equal to the sum of the present values of the remaining scheduled payments of principal and interest on such Notes (not including any portion of such payments of interest accrued as of such Redemption Date) that would be due if the Notes matured on the first day of the next Par Call Period, discounted to such Redemption Date on a semi-annual basis (assuming a 360-day year comprising twelve 30-day months) at the Treasury Rate, plus 50 basis points; plus, in each case, accrued and unpaid interest (including any Arrears of Interest) on such Notes to, but excluding, such Redemption Date.
(b) Subject to Section 3.04(a), at any time during a Par Call Period, and provided that the BMA Redemption Requirements have been satisfied and will continue to be satisfied if the optional redemption payment were made on the Notes, the Company may redeem the Notes, in whole at any time or in part (equal to $2,000 and integral multiples of $1,000 in excess thereof), at the Company’s option, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest (including any Arrears of Interest) to, but excluding, such Redemption Date.
(c) Notice of any optional redemption will be sent at least 15 days but not more than 60 days before the Redemption Date to the Trustee and each Holder of the Notes to be redeemed at its registered address (which notice will be irrevocable). The notice of redemption with respect to Section 3.02(a) need not set forth the redemption price but only the manner of calculation thereof. The Company shall notify the Trustee and the Holders of the Notes in writing not less than 10 Business Days prior to the applicable Redemption Date (or as soon as reasonably practicable if the BMA Redemption Requirements are no longer satisfied as of a date less than 10 Business Days prior to the applicable Redemption Date) if the BMA Redemption Requirements will not be satisfied on the applicable Redemption Date, which written notice shall state the cause of the failure to satisfy such conditions, and the redemption shall be deferred until such time as the BMA Redemption Requirements are satisfied. In such event, the Company shall, not more than 10 Business Days following the satisfaction of the BMA Redemption Requirements, notify the Trustee in writing that the BMA Redemption Requirements have been satisfied and of the new Redemption Date (which the Trustee shall promptly disseminate to the Holders of the Notes), which new Redemption Date shall be no earlier than three Business Days after the date on which notice of such Redemption Date has been given to the Trustee and no later than the 15th Business Day following the date the BMA Redemption Requirements were satisfied. If at any time following the date of such written notice and prior to the new Redemption Date the BMA Redemption Requirements are no longer satisfied, the above notice provisions shall again apply.
(d) Unless the Company defaults in the payment of the redemption price (including, for this purpose, a non-payment in the event the BMA Redemption Requirements have not been satisfied), on and after the Redemption Date, interest will cease to accrue on the Notes or portions thereof called for redemption.
(e) Whenever any determination is required to be made pursuant to this Section 3.02 as to whether any redemption occurs within or not within a Par Call Period or any other specified period, the actual date of redemption and not the date of notice of redemption shall govern.
Section 3.03 Specified Event Redemption of the Notes.
(a) Subject to Section 3.04(a) and provided that the BMA Redemption Requirements have been satisfied and will continue to be satisfied if the redemption payment were made on the Notes, the Company may redeem the Notes at its option, in whole but not in part, at any time at a redemption price equal to (1) 100% of the principal amount, plus accrued and unpaid interest (including any Arrears of Interest), if any, on such Notes to, but excluding, such Redemption Date, within 90 days of the date on which the Company has reasonably determined that, as a result of (i) any amendment to, or change in, the laws or regulations of Bermuda that is enacted or becomes effective after the initial issuance of the Notes; (ii) any proposed amendment to, or change in, those laws or regulations that is announced or becomes effective after the initial issuance of the Notes; or (iii) any official administrative decision, judicial decision, administrative action or other official pronouncement interpreting or applying those laws or regulations that is announced after the initial issuance of the Notes, a Capital Disqualification Event has occurred; (2) 102% of the principal amount, plus accrued and unpaid interest (including any Arrears of Interest), if any, on such Notes to, but excluding, such Redemption Date, within 90 days after the occurrence of a Rating Agency Event; and (3) 100% of the principal amount, plus accrued and unpaid interest (including any Arrears of Interest), if any, on such Notes to, but excluding, such Redemption Date, after the occurrence of a Tax Event (each, a “Specified Event Redemption”); provided that, at the time of such Specified Event Redemption, the BMA Redemption Requirements are satisfied and will continue to be satisfied after the redemption payment is made and, if not so satisfied, such Specified Event Redemption will be deferred until such time as the BMA Redemption Requirements are satisfied.
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(b) Notice of any Specified Event Redemption will be sent at least 15 days but not more than 60 days before the Redemption Date to the Trustee and each Holder of the Notes to be redeemed at its registered address (which notice will be irrevocable). The Company shall notify the Trustee and the Holders of the Notes in writing not less than 10 Business Days prior to the applicable Redemption Date (or as soon as reasonably practicable if the BMA Redemption Requirements are no longer satisfied as of a date less than 10 Business Days prior to the applicable Redemption Date) if the BMA Redemption Requirements will not be satisfied on the applicable Redemption Date, which written notice shall state the cause of the failure to satisfy such conditions, and the Specified Event Redemption shall be deferred until such time as the BMA Redemption Requirements are satisfied. . In such event, the Company shall, not more than 10 Business Days following the satisfaction of the BMA Redemption Requirements, notify the Trustee in writing that the BMA Redemption Requirements have been satisfied and of the new Redemption Date (which the Trustee shall promptly disseminate to the Holders of the Notes), which new Redemption Date shall be no earlier than three Business Days after the date on which notice of such Redemption Date has been given to the Trustee and no later than the 15th Business Day following the date the BMA Redemption Requirements were satisfied. If at any time following the date of such written notice and prior to the new Redemption Date the BMA Redemption Requirements are no longer satisfied, the above notice provisions shall again apply.
(c) Such notice shall state the specified Redemption Date, the facts establishing the right of the Company or the Guarantor to redeem the Notes, and that all Outstanding Notes shall be redeemed at the applicable redemption price on the Redemption Date automatically and without any further action by the Holders of the Notes.
(d) Unless the Company defaults in the payment of the redemption price (including, for this purpose, a non-payment in the event the BMA Redemption Requirements have not been satisfied), on and after the Redemption Date, interest will cease to accrue on the Notes to be redeemed.
Section 3.04 BMA Redemption Requirements.
(a) Notwithstanding anything to the contrary set forth herein, (i) prior to October 1, 2025, the Notes may be redeemed only with BMA Approval, and (ii) the Notes may not be redeemed at any time or repaid prior to the Final Maturity Date if the Enhanced Capital Requirement would be breached immediately before or after giving effect to such redemption or repayment of the Notes, unless, in the case of each of clause (i) and (ii), the Guarantor, the Company or another subsidiary of the Guarantor replaces the capital represented by the Notes to be redeemed or repaid with capital having equal or better capital treatment as the Notes under the Group Rules (collectively, the “BMA Redemption Requirements”).
(b) In the event that the Notes are not redeemed or repaid as a result of a failure to satisfy the BMA Redemption Requirements, interest on the Notes will continue to accrue and be paid on each Interest Payment Date (subject to Section 2.5) until the first date on which final payment on the Notes may be made as described in Section 3.01, at which time the Notes will become due and payable, and will be finally repaid at the principal amount of the Notes, together with any accrued and unpaid interest in the manner and subject to the conditions of Section 3.04(a).
(c) Notwithstanding any provision of the Notes or the Indenture, in the event of non-payment on a scheduled Redemption Date or the Scheduled Maturity Date resulting from a failure to satisfy the BMA Redemption Requirements in accordance with this Section 3.04, the Notes to be redeemed or repaid will not become due and payable on such date, and such non-payment will constitute neither an Event of Default nor a default of any kind with respect to the Notes, and will not give Holders of the Notes or the Trustee any right to accelerate repayment of the Notes or any other remedies.
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(d) An Officers’ Certificate relating to the Notes in connection with repayment or any redemption under this Article 3 certifying that (i) the BMA Redemption Requirements have not been met or would not be met if the Notes were repaid or the applicable redemption payment were made, (ii) the BMA Redemption Requirements have been met and would continue to be met if the Notes were to be repaid or the applicable redemption payment were made or (iii) no such BMA Redemption Requirements apply shall, in the absence of manifest error, be treated and accepted by the Trustee, the Holders of the Notes and all other interested parties as correct and sufficient evidence thereof, shall be final and binding on such parties, and the Trustee shall be entitled to rely on such Officers’ Certificate without liability to any Person and shall have no duty to ascertain the existence of any such manifest error.
Article 4
NO SINKING FUND
Article 12 of the Base Indenture shall be superseded by this Article 4 with respect to the Notes.
Section 4.01 No Sinking Fund. The Notes are not entitled to the benefit of any sinking fund.
Article 5
FORM OF NOTE
Section 5.01 Form of Note. The Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:
[FORM OF FACE OF NOTE]
[IF THE NOTE IS TO BE A GLOBAL SECURITY, INSERT - THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE CLEARING AGENCY OR A NOMINEE OF THE CLEARING AGENCY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE CLEARING AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.]
[UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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PARTNERRE FINANCE B LLC
4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050
| No. R-[•] | $[•] |
| CUSIP No. 70213B AC5 |
PARTNERRE FINANCE B LLC, a limited liability company organized and existing under the laws of Delaware (hereinafter called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., as nominee for The Depository Trust Company, or registered assigns, the principal sum of [•] dollars ($[•]) on the Final Maturity Date. The Company further promises to pay interest on said principal sum from September 22, 2020 or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on April 1 and October 1 in each year, commencing on April 1, 2021, at the rate and subject to the terms and conditions specified in Sections 2.05 and 2.06 of the First Supplemental Indenture, until the principal hereof is paid or duly provided for. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months unless the period for which interest is to be paid consists of less than a 30-day month, in which case it will be computed on the basis of the actual number of days elapsed per 30-day month. Any separate payment of Arrears of Interest will be paid according to Section 2.07 of the First Supplemental Indenture. If any Interest Payment Date falls on a day that is not a Business Day, the interest payment due on that date will be postponed until the next succeeding Business Day, and no interest on such payment will accrue for the period from and after such Interest Payment Date to such next succeeding Business Day. Similarly, if the Final Maturity Date falls on a day that is not a Business Day, the payment of interest and principal may be made on the next succeeding Business Day, and no interest on such payment will accrue for the period from and after the Final Maturity Date to such next succeeding Business Day.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the March 15 or September 15 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Company in accordance with the terms of the Indenture, notice whereof shall be given by the Trustee to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
Unless this Note is a global Note, payment of the principal of and interest due on the Final Maturity Date of this Note shall be made upon surrender of this Note at the Corporate Trust Office of the Trustee. The principal of and interest on this Note shall be paid in Dollars. Payments of interest will be made, subject to such surrender where applicable, at the option of the Company, (i) by check mailed to the address of the Person entitled thereto at such address as shall appear in the Security Register or (ii) by wire transfer to an account maintained by the payee with a bank located in the United States.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual or electronic signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated: [•], 2020
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| PARTNERRE FINANCE B LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
This is one of the Notes referred to in the within mentioned Indenture.
| THE BANK OF NEW YORK MELLON, as Trustee | ||
| By: | ||
| Authorized Officer | ||
Dated: [•], 2020
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of securities of the Company (herein called the “Notes”), issued and to be issued in one or more series under an Indenture, dated as of September 22, 2020 (herein called the “Base Indenture”), between the Company, the Guarantor and The Bank of New York Mellon, as trustee (herein called the “Trustee”), as amended and supplemented by a First Supplemental Indenture, dated as of September 22, 2020 (the “First Supplemental Indenture” and the Base Indenture as so supplemented, the “Indenture”), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Notes, and of the terms upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to $500,000,000.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
The Notes will represent the junior subordinated unsecured obligations of the Company and will rank equally in right of payment with all future indebtedness of the Company that is by its terms equal in right of payment to the Notes. The Notes are subordinated in right of payment, in the manner and to the extent set forth in the Indenture, to the prior payment in full of all Senior Indebtedness. The Notes are contractually subordinated in right of payment to any existing and future liabilities of the Guarantor’s subsidiaries (other than the Company, PartnerRe Finance II Inc. and PartnerRe Ireland Finance DAC), including amounts owed to holders of reinsurance and insurance policies issued by the Guarantor’s reinsurance and insurance company subsidiaries.
The Final Maturity Date of the Notes is (1) October 1, 2050, or the “Scheduled Maturity Date,” if, on the Scheduled Maturity Date, the BMA Redemption Requirements are satisfied, or (2) otherwise, following the Scheduled Maturity Date, the earlier of (a) the date falling 10 Business Days after the BMA Redemption Requirements are satisfied and would continue to be satisfied if such payment were made and (b) the date on which a Winding-Up of the Company or the Guarantor occurs.
If an Event of Default with respect to Notes of this series shall occur and be continuing, the principal of the Notes of this series may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
So long as no Event of Default has occurred and is continuing, the Company and the Guarantor may elect at one or more times to defer payment of interest on the Notes for one or more consecutive interest periods, subject to, and in accordance with, the terms of the Indenture. If, as of any Interest Payment Date, a Mandatory Deferral Event has occurred and is continuing, the Company and the Guarantor shall be required to defer payment of all (and not less than all) of the interest accrued on the Notes as of such Interest Payment Date, subject to, and in accordance with, the terms of the Indenture.
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The Indenture contains provisions for satisfaction, discharge and defeasance at any time of the entire indebtedness of this Note upon compliance by the Company with certain conditions set forth in the Indenture.
The Notes will not have a sinking fund.
The Notes of this series shall be redeemable in accordance with Article 3 of the First Supplemental Indenture.
If less than all of the Notes are to be redeemed, the Notes to be redeemed shall be selected in accordance with the procedures of The Depository Trust Company, in the case of Notes represented by a global note, or by the Trustee by lot, in the case of Notes that are not represented by a global note.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Securities Register, upon surrender of this Note for registration of transfer at the office or agency of the Company maintained under Section 10.02 of the Base Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. This global Security is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. Notes so issued are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Base Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same.
This Note does not in any way give rise to any rights of set-off, recoupments or counterclaims against any claims and obligations of the Company or the Guarantor or any of the Guarantor’s regulated operating subsidiaries to any Person in whose name this Note is registered or any creditor of the Company or the Guarantor or any of the Guarantor’s regulated operating subsidiaries. By acquiring this Note, the Holder is deemed to agree and acknowledge that no security or encumbrance of any kind is, or will at any time be, provided by the Company or of the Guarantor or any of their affiliates to secure the rights of Holders.
No recourse shall be had for the payment of the principal of or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, shareholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
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THE INDENTURE AND THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Security to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee)
hereby irrevocably constituting and appointing ______________________________________________________ as agent to transfer this Security on the books of the Securities Registrar. The agent may substitute another to act for him or her.
| Dated: | Signature: | |
| Signature Guarantee: |
| (Sign exactly as your name appears on the other side of this Security) |
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Securities Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Securities Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
Article 6
ORIGINAL ISSUE OF NOTES
Section 6.01 Original Issue of Notes. Notes in the aggregate principal amount not to exceed $500,000,000, except as provided in Section 2.02 hereof, may, upon execution of this First Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chief Executive Officer, President, any Senior Vice President, Vice President or Secretary, without any further action by the Company.
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Article 7
EVENTS OF DEFAULT
Solely with respect to the Notes, for so long as any of the Notes remain outstanding, pursuant to Section 3.01(r) of the Base Indenture, Sections 5.01 and 5.02 of the Base Indenture shall be superseded with respect to the Notes by the following provisions.
Section 7.01 Events of Default.
(a) An “Event of Default” with respect to the Notes, means each one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(i) a default in payment of principal or any premium when due, other than if the Company is required to postpone payment due to failure to satisfy the BMA Redemption Requirements;
(ii) a default for 30 days in the payment of any interest upon any of the Notes, other than upon the occurrence of a Mandatory Deferral Event (or if the Company or the Guarantor has validly elected to defer the payment of such interest in accordance with Section 2.09);
(iii) the guarantees of the Notes by the Guarantor cease to be in full force and effect or are declared to be null and void and unenforceable (other in accordance with the terms of the Indenture); or
(iv) the Company or the Guarantor shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to the appointment or taking possession by a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Company or the Guarantor or for any substantial part of its or their property, or make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay its or their respective debts generally as they become due.
(b) If an Event of Default described in clause (iv) in Section 7.01(a) occurs and is continuing, then the principal amount of the Notes will be immediately due and payable without any declaration or any other action on the part of the Trustee or any Holder of the Notes.
(c) If an Event of Default described in clause (i), (ii) or (iii) in Section 7.01(a) occurs and is continuing, either the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Notes may declare the principal of all the Notes to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal shall become immediately due and payable.
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Section 7.02 Acceleration of Maturity; Rescission and Annulment.
At any time after a declaration of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as provided in Article 5 of the Base Indenture, the Holders of not less than a majority in principal amount of the Outstanding Notes, by written notice to the Company or the Guarantor, as the case may be, and the Trustee, may rescind and annul such declaration and its consequences if:
(a) the Company or the Guarantor have paid or deposited with the Trustee a sum of money sufficient to pay:
(i) all overdue installments of any interest on and Additional Amounts with respect to such Notes and any coupon appertaining thereto (including, for the avoidance of doubt, Arrears of Interest),
(ii) the principal of and any premium on any Notes which have become due otherwise than by such declaration of acceleration and interest thereon and any Additional Amounts with respect thereto at the rate or rates borne by or provided for in such Notes,
(iii) to the extent that payment of such interest or Additional Amounts is lawful, interest upon overdue installments of any interest and Additional Amounts at the rate or rates borne by or provided for in such Notes, and
(iv) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under Section 6.06 of the Base Indenture; and
(b) all Events of Default with respect to the Notes, other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to the Notes which shall have become due solely by such declaration of acceleration, shall have been cured or waived as provided in Section 5.13 of the Base Indenture.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Article 8
COVENANTS
Solely with respect to the Notes, for so long as any of the Notes remain outstanding, pursuant to Section 3.01 of the Base Indenture, Article 10 of the Base Indenture shall be supplemented with respect to the Notes by the following provisions.
Until all the principal of and interest on each Note have been paid in full, the Company covenants and agrees with the Holders that:
Section 8.01 Activities of the Company. The Company’s activities shall be limited to issuing and repurchasing senior or subordinated debt instruments and lending the proceeds from the sale of any such senior or subordinated debt instruments to PartnerRe U.S. Corporation on terms identical in all material respects to the terms of the debt instruments issued by the Company in such transaction, and any other activities necessary or incidental to these activities.
Section 8.02 Use of Proceeds. The Company shall use the proceeds of the Notes to repurchase any senior or subordinated debt instruments previously issued and outstanding and/or to acquire debt instruments of PartnerRe U.S. Corporation on terms identical in all material respects to those of these Notes and shall hold such debt instruments for so long as any Note remains outstanding. Any such debt instrument of PartnerRe U.S. Corporation shall be evidenced at all times by a note or agreement duly executed and delivered by PartnerRe U.S. Corporation. The Company shall modify or waive the terms of any such debt instrument of PartnerRe U.S. Corporation only if and to the extent that the terms of the Notes have been modified or waived in accordance with the terms of the Indenture.
Section 8.03 Proper Records. The Company will keep proper books of record and account in which complete and correct entries are made of all transactions relating to its business and activities.
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Section 8.04 Compliance with Laws. The Company will comply with all laws, rules, regulations and orders of any government agency applicable to it or its property, except where failures to do so could not, in the aggregate, result in a material adverse effect on its ability to satisfy its obligations on the Notes.
Section 8.05 Reserved.
Section 8.06 Dividend and Other Payment Stoppages During Deferral Periods. So long as the Notes remain outstanding, if (i) the Guarantor or the Company has given notice of their election to commence an Optional Deferral Period, (ii) the Guarantor or the Company has given notice identifying the commencement of a Mandatory Deferral Period or (iii) an Optional Deferral Period or a Mandatory Deferral Period has commenced and is continuing, then beginning on the earliest of such dates and until such time as the Guarantor or the Company has paid all Arrears of Interest (including compounded interest on the deferred amounts), the Guarantor will not, nor will it permit its subsidiaries to:
(a) declare or pay any dividends or distributions on its preferred shares or common shares (collectively, “capital stock”), other than (1) a dividend payable solely in the form of equity securities, warrants, options or other rights where the dividend stock or the stock issuable upon exercise of the warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such capital stock or (2) any inter-company payments, other than dividend payments by the Company or its direct parent, PartnerRe U.S. Corporation;
(b) repurchase, redeem or otherwise acquire for consideration any shares of capital stock, directly or indirectly, other than (1) as a result of a reclassification of capital stock for or into other capital stock or the exchange or conversion of one share of capital stock for or into another share of capital stock, (2) through the use of the proceeds of a substantially contemporaneous sale of capital stock or (3) as required by or necessary to fulfill the terms of any employment contract, benefit plan or similar arrangement with or for the benefit of one or more employees, directors or consultants;
(c) make any payment of principal of, or interest or premium, if any, on, or repay, repurchase or redeem any debt securities that the Guarantor issues or guarantees for which such securities or guarantees, as the case may be, rank upon the Guarantor’s liquidation equal with or junior to the guarantees of the Notes, other than (1) any payment of current or deferred interest on equal-ranking securities that is made pro rata to the amounts due on such equal-ranking securities (including the Notes and the guarantees of the Notes) and (2) any payment of principal or current or deferred interest with respect to any equal-ranking securities to the extent necessary to avoid a breach of any terms of the indentures or guarantees governing such equal-ranking securities; or
(d) make any guarantee payments regarding any guarantee issued by the Guarantor of securities of any of its subsidiaries if that guarantee ranks upon the Guarantor’s liquidation equal with or junior to the guarantees of the Notes, other than (1) any payment of current or deferred interest on equal-ranking securities that is made pro rata to the amounts due on such equal ranking securities (including the Notes and the guarantees of the Notes) and (2) any payment of principal or current or deferred interest with respect to any equal-ranking securities to the extent necessary to avoid a breach of any terms of the indentures or guarantees governing such equal-ranking securities.
Article 9
MODIFICATION AND WAIVER
Solely with respect to the Notes, for so long as any of the Notes remain outstanding, the Company (when authorized by or pursuant to a Company’s Board Resolution), the Guarantor (when authorized pursuant to a Board Resolution of the Guarantor’s Board of Directors) and the Trustee may enter into an indenture or indentures supplemental hereto in accordance with Article 9 of the Base Indenture as amended and supplemented by the following provision.
Section 9.01 Modification and Waiver. Notwithstanding anything to the contrary in the Indenture, no modification or amendment to the Stated Maturity or the principal of, or any premium or installment of interest on, or any Additional Amounts with respect to, any of the Notes is permitted without (i) the consent of the Holder of each Note affected thereby and (ii) BMA Approval.
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Article 10
ADDITIONAL TERMS
Section 10.01 Additional Terms. The Notes will not be convertible into shares of Common Stock or Preferred Stock of the Company and/or exchangeable for other securities. The amount of payments of principal with respect to the Notes shall not be determined with reference to an index, formula or other method or methods. No Notes are issuable upon the exercise of warrants. Each of Section 4.02(b) of the Base Indenture relating to defeasance and Section 4.02(c) of the Base Indenture relating to covenant defeasance shall apply to the Notes, and the covenants subject to Section 4.02(c) and Section 10.06 of the Base Indenture shall include the covenants set forth in, and made applicable to the Notes by, Article 8 of this First Supplemental Indenture.
Section 10.02 No Rights of Set-off; No Encumbrances. The Notes will not in any way give rise to any rights of set-off, recoupments or counterclaims against any claims and obligations of the Company or the Guarantor or any of the Guarantor’s regulated operating subsidiaries to any Person in whose name the Notes are registered or any creditor of the Company or the Guarantor or any of the Guarantor’s regulated operating subsidiaries. By acquiring the Notes, each Holder is deemed to agree and acknowledge that no security or encumbrance of any kind is, or will at any time be, provided by the Company or the Guarantor or any of their affiliates to secure the rights of Holders.
Section 10.03 Contractual Subordination. The Notes are junior subordinated unsecured obligations of the Company and will be contractually subordinated in right of payment to any existing and future liabilities of the Guarantor’s subsidiaries (other than the Company, PartnerRe Finance II Inc. and PartnerRe Ireland Finance DAC), including amounts owed to holders of reinsurance and insurance policies issued by its reinsurance and insurance company subsidiaries.
Section 10.04 Agreement to Certain Tax Treatment. The Company, the Guarantor and PartnerRe U.S. Corporation agree, and each Holder and beneficial owner of the Notes will, by accepting the Notes or a beneficial interest therein, be deemed to have agreed, to treat the Notes as indebtedness of PartnerRe U.S. Corporation for U.S. federal income tax purposes, unless otherwise required by applicable law.
Article 11
MISCELLANEOUS
Section 11.01 Ratification of Indenture. The Indenture, as supplemented by this First Supplemental Indenture, is in all respects ratified and confirmed, and this First Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.
Section 11.02 Trustee Not Responsible for Recitals. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental Indenture.
Section 11.03 Governing Law. This First Supplemental Indenture and each Note shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State applicable to contracts made and to be performed entirely within said State.
Section 11.04 Separability. In case any one or more of the provisions contained in this First Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the Notes, but this First Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 11.05 Counterparts. This First Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
* * *
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This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
| PARTNERRE FINANCE B LLC, as Company | |||
| By: | /s/ Thomas L. Forsyth | ||
| Name: | Thomas L. Forsyth | ||
| Title: | President & CEO | ||
| PARTNERRE LTD., as Guarantor | |||
| By: | /s/ Nick Burnet | ||
| Name: | Nick Burnet | ||
| Title: | Executive Vice President & | ||
| Chief Financial Officer | |||
| THE BANK OF NEW YORK MELLON, as Trustee | |||
| By: | /s/ Laurence J. O’Brien | ||
| Name: | Laurence J. O’Brien | ||
| Title: | Vice President | ||
[First Supplemental Indenture]
Exhibit 4.3
EXECUTION VERSION
SUBORDINATED DEBT SECURITIES GUARANTEE AGREEMENT
BETWEEN
PARTNERRE LTD.
(AS GUARANTOR)
AND
THE BANK OF NEW YORK MELLON
(AS GUARANTEE TRUSTEE)
DATED AS OF
September 22, 2020
TABLE OF CONTENTS
| PAGE | ||
| Article I | ||
| Definitions | ||
| Section 1.01 | Definitions | 1 |
| Article II | ||
| Trust Indenture Act | ||
| Section 2.01 | Trust Indenture Act: Application | 4 |
| Section 2.02 | List of Holders | 4 |
| Section 2.03 | Reports by the Guarantee Trustee | 5 |
| Section 2.04 | Periodic Reports to the Guarantee Trustee | 5 |
| Section 2.05 | Evidence of Compliance with Conditions Precedent | 5 |
| Section 2.06 | Events of Default; Waiver | 5 |
| Section 2.07 | Event of Default; Notice | 5 |
| Section 2.08 | Conflicting Interests | 6 |
| Article III | ||
| Powers, Duties and Rights of Guarantee Trustee | ||
| Section 3.01 | Powers, and Duties of the Guarantee Trustee | 6 |
| Section 3.02 | Certain Rights of the Guarantee Trustee | 7 |
| Section 3.03 | Indemnity | 9 |
| Article IV | ||
| Guarantee Trustee | ||
| Section 4.01 | Guarantee Trustee; Eligibility | 10 |
| Section 4.02 | Appointment, Removal and Resignation of Guarantee Trustees | 10 |
| Article V | ||
| Guarantee | ||
| Section 5.01 | Guarantee | 11 |
| Section 5.02 | Waiver of Notice and Demand | 11 |
| Section 5.03 | Obligations Not Affected | 11 |
| Section 5.04 | Rights of Holders | 12 |
| Section 5.05 | Guarantee of Payment | 12 |
| Section 5.06 | Limitation on Liability | 12 |
| Section 5.07 | Subrogation | 12 |
| Section 5.08 | Independent Obligations | 12 |
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| Article VI | ||
| Ranking | ||
| Section 6.01 | Reserved | 13 |
| Section 6.02 | Ranking | 13 |
| Section 6.03 | Pari Passu Guarantees | 13 |
| Article VII | ||
| Termination | ||
| Section 7.01 | Termination | 13 |
| Article VIII | ||
| Miscellaneous | ||
| Section 8.01 | Successors and Assigns | 13 |
| Section 8.02 | Amendments | 14 |
| Section 8.03 | Notices | 14 |
| Section 8.04 | Benefit | 15 |
| Section 8.05 | Governing Law | 15 |
| Section 8.06 | Interpretation | 15 |
| Section 8.07 | Submission to Jurisdiction | 16 |
| Section 8.08 | Judgment Currency | 16 |
| Section 8.09 | Waiver of Jury Trial | 17 |
| Section 8.10 | Force Majeure | 17 |
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SUBORDINATED DEBT SECURITIES GUARANTEE AGREEMENT
This SUBORDINATED DEBT SECURITIES GUARANTEE AGREEMENT (this “Guarantee Agreement” or this “Guarantee”), dated as of September 22, 2020, is executed and delivered by PartnerRe Ltd., a Bermuda company (“PartnerRe” or the “Guarantor”), having its principal executive offices at 90 Pitts Bay Road, Pembroke HM 08, Bermuda, and The Bank of New York Mellon, a New York banking corporation, having a corporate trust office located at 240 Greenwich Street, New York, New York 10286, 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 B LLC, a Delaware limited liability company (the “Issuer”).
WHEREAS, pursuant to a Subordinated Indenture, dated as of September 22, 2020 (the “Indenture”), among the Issuer, the Guarantor and the Guarantee Trustee, as trustee thereunder, the Issuer may issue subordinated unsecured 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 and acceptance of the Debentures 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 I
Definitions
Section 1.01 Definitions. As used in this Guarantee Agreement, the terms set forth below shall, unless the context otherwise requires, have the following meanings. Capitalized or otherwise defined terms used, but not otherwise defined herein shall have the meanings assigned to such terms in the Indenture as in effect on the date hereof.
“Additional Amounts” means any additional amounts which are required by the terms of the Debentures, under circumstances specified in the terms of such Debentures, 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 Director, a Vice Chairman, the President, a Vice President, the Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Chief Investment Officer, the Chief Accounting Officer, the Chief Legal Counsel, the Secretary or an Assistant Secretary, of such Person.
“Board of Directors” means the board of directors of the Guarantor or any committee of that board of directors duly authorized to act generally or in any particular respect for the Guarantor hereunder.
“Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an Assistant Secretary of the Guarantor to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, delivered to the Trustee.
“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 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.
“Guarantor Senior Indebtedness” means, with respect to the Guarantee of any particular series of Debentures, all the principal of and premium, if any, and interest on (1) all Indebtedness of the Guarantor, whether outstanding on the date of this Guarantee or thereafter created, (a) for money borrowed by the Guarantor (other than obligations pursuant to the Indenture or the Guarantee, in each case in respect of the Debentures of such series), (b) for money borrowed by, or obligations of, others and either assumed or guaranteed, directly or indirectly, by the Guarantor (other than the Guarantee of the Debentures of such series or any obligation that by its terms or the terms of the instrument creating or evidencing it, has a subordinate or equivalent right to payment with the Guarantee of the Debentures of such series), (c) in respect of letters of credit and acceptances issued or made by banks in favor of the Guarantor or (d) constituting purchase money indebtedness, or Indebtedness secured by property included in the property, plant and equipment accounts of the Guarantor at the time of the acquisition of such property for the payment of which the Guarantor is directly liable, and (2) all deferrals, renewals, extensions and refundings of, and amendments, modifications and supplements to, any such Indebtedness. As used in the preceding sentence the term “purchase money indebtedness” means Indebtedness evidenced by a note, debenture, bond or other instrument (whether or not secured by any lien or other security interest) issued or assumed as all or a part of the consideration for the acquisition of property, whether by purchase, merger, consolidation or otherwise. Notwithstanding anything to the contrary in the Guarantee of any particular series of Debentures, Guarantor Senior Indebtedness shall not, with respect to that series of Debentures, include any Indebtedness of the Guarantor, which, by its terms or the terms of the instrument creating or evidencing it, is subordinate in right of payment to or pari passu with the Guarantee of the Debentures of such series.
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“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.
“List of Holders” has the meaning specified in Section 2.02(a).
“Officer’s Certificate” means, with respect to any Person, a certificate signed by an Authorized Officer, who is a principal executive, principal financial, principal accounting officer or, in respect of the Guarantor, Chief Legal Counsel, or Secretary or Assistant Secretary of the Guarantor, and is delivered to the Guarantee Trustee. Any Officer’s Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee shall include:
(a) a statement that the officer signing the Officer’s 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 Officer’s 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.
“Subsidiary” means, in respect of any Person, any Corporation, limited or general partnership or other business entity of which at the time of determination more than 50% of the voting power of the shares of its Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is owned or controlled, directly or indirectly, by (i) such Person, (ii) such Person and one or more Subsidiaries of such Person or (iii) one or more Subsidiaries of such Person.
“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 II
Trust Indenture Act
Section 2.01 Trust Indenture Act: Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust Indenture Act that are required to be part of this Guarantee Agreement and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.02 List of Holders.
(a) Within 30 days after the receipt by the Guarantor of a request in writing from the Guarantee Trustee, the Guarantor shall furnish or cause to be furnished to the Guarantee Trustee a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders (“List of Holders”), such List of Holders to be as of a date not more than 15 days prior to the time such List of Holders is furnished, in each case to the extent such information is in the possession or control of the Guarantor and is not identical to a previously supplied list of Holders or has not otherwise been received by the 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.
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(b) The Guarantee Trustee shall comply with its obligations under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.03 Reports by the Guarantee Trustee. Within 60 days after March 15 of each year commencing with March 15, 2021, 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 Officer’s 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 Officer’s Certificate.
Section 2.06 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 of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 2.07 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notices of all such Events of Default, unless such defaults have been cured or waived before the giving of such notice, provided, except in the case of a default in the payment by the Guarantor of any amount due under this Guarantee Agreement, the Guarantee Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
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(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default (except in the case of a default in the payment of principal of or interest on any Security) unless a Responsible Officer of the Guarantee Trustee 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 III
Powers, Duties and Rights of Guarantee Trustee
Section 3.01 Powers, and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except a Holder exercising his or her rights pursuant to Section 5.04(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 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.
(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:
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(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 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;
(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.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may rely upon, and shall be fully protected in acting or refraining from acting upon, any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
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(ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officer’s 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 Officer’s 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 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 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(a)(v) shall be taken to relieve the Guarantee Trustee, upon the occurrence of an Event of Default hereunder or under the Indenture, of its obligation to exercise the rights and powers vested in it by this Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder.
(viii) Any action taken by the Guarantee Trustee or its agents hereunder shall bind the Holders, and the signature of the Guarantee Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Guarantee Trustee to so act or as to its compliance with any of the terms and provisions of this Guarantee Agreement, both of which shall be conclusively evidenced by the Guarantee Trustee’s or its agent’s taking such action.
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(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.
(c) The parties hereto hereby agree that the Guarantee Trustee shall have all the rights, protections, privileges, immunities and indemnities afforded to the Trustee set forth in the Indenture, as if such rights, protections, privileges, immunities and indemnities were specifically set forth herein. The Guarantee Trustee shall not be responsible for the validity or sufficiency of this Guarantee Agreement, nor for the recitals hereunder.
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, bad faith 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.
The provisions of this Section 3.03 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
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Article IV
Guarantee Trustee
Section 4.01 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor or the Issuer; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital of at least 50 million U.S. dollars ($50,000,000), and shall be a corporation meeting the requirements of Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the supervising or examining authority, then, for the purposes of this Section 4.01(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.01(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.02 Appointment, Removal and Resignation of Guarantee Trustees.
(a) Subject to Section 4.02(b), the Guarantee Trustee may be appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section 4.02(a) until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a Successor Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.02 within 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.
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Article V
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 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, 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 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 5.02 Waiver of Notice and Demand. The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.
Section 5.03 Obligations Not Affected. The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall be as if it were a principal debtor, and not merely a surety, and shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer of any express or implied agreement, covenant, term or condition relating to the 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;
(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 5.03 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
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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 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 5.05 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 Debentures.
Section 5.06 Limitation on Liability. The Guarantor, and by its acceptance of Debentures of any series, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code or any similar state law to the extent applicable to any Guarantee. Any term or provision of the Indenture to the contrary notwithstanding, the maximum aggregate amount of the obligations guaranteed hereunder by the Guarantor shall not exceed the maximum amount that can be hereby guaranteed without rendering the Indenture, as it relates to the Guarantor, or the Guarantee voidable or otherwise ineffective under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Section 5.07 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 5.08 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 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 5.03 hereof.
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Article VI
Ranking
Section 6.01 Reserved.
Section 6.02 Ranking. The Guarantee shall constitute a subordinated unsecured obligation of the Guarantor and shall rank (i) subordinated in right of payment to Guarantor Senior Indebtedness, it being understood that the terms of Article 16 of the Indenture shall apply to the obligations of the Guarantor under this Guarantee Agreement as if (w) such Article 16 were set forth herein in full, (x) such guarantee obligations provided were substituted for the term “Securities” appearing in such Article 16, (y) Guarantor Senior Indebtedness were substituted for the term “Senior Indebtedness” appearing in such Article 16, and (z) the Guarantor were substituted for the term “Company” appearing in such Article 16 and (ii) senior to the Guarantor’s common and preferred shares. For the purposes of the foregoing sentence, the Trustee and the Holders will have the right to receive and/or retain payments by the Guarantor only at such times as they may receive and/or retain payments in respect of the Securities of such series pursuant to the Indenture, including Article 16 thereof.
Section 6.03 Pari Passu Guarantees. The Guarantee shall rank pari passu with any similar guarantee agreements issued by the Guarantor on behalf of holders of subordinated unsecured notes issued by any entity affiliated with the Guarantor which is a financing vehicle of the Guarantor.
Article VII
Termination
Section 7.01 Termination. The 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 8.01 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 Debentures then outstanding. Except in connection with a consolidation, merger, amalgamation 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.
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Section 8.02 Amendments. Except with respect to any changes that do not adversely affect the rights of Holders of any particular series of Debentures in any material respect (in which case no consent of such 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 such Debentures 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 particular series of Debentures. The provisions of Article 15 of the Indenture concerning meetings of Holders apply to the giving of such approval.
Section 8.03 Notices. Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set forth below (or such other address as the Guarantee Trustee may give notice of to the Guarantor and the Holders):
The Bank of New York Mellon
240 Greenwich Street
New York, New York 10286
Attention: Corporate Trust Administration
(b) If given to the Guarantor, at the Guarantor’s mailing address set forth below (or such other address as the Guarantor may give notice of to the Holders):
PartnerRe Ltd.
90 Pitts Bay Road
Pembroke HM 08
Bermuda
Attention: Legal and Compliance
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Attention: Scott Miller
(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 B LLC
c/o PartnerRe Ltd.
90 Pitts Bay Road
Pembroke HM 08
Bermuda
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Attention: Legal and Compliance
with a copy to:
The Bank of New York Mellon
240 Greenwich Street
New York, New York 10286
Attention: Corporate Trust Administration
(d) If given to any Holder, at the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
Section 8.04 Benefit. This Guarantee is solely for the benefit of the Holders and is not separately transferable from the Debentures.
Section 8.05 Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND PERFORMED IN THAT STATE.
Section 8.06 Interpretation. In this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement, but not defined in the preamble hereto have the respective meanings assigned to them in Section 1.01 or in the Indenture, as the case may be;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning throughout;
(c) all references to “the Agreement” or “this Guarantee Agreement” are to this Guarantee Agreement as modified, supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to Articles and Sections of this Guarantee Agreement, unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used in this Guarantee Agreement, unless otherwise defined in this Guarantee Agreement or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
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(g) the masculine, feminine, or neuter genders used herein shall include the masculine, feminine and neuter genders.
Section 8.07 Submission to Jurisdiction. The Guarantor agrees that any judicial proceedings instituted in relation to any matter arising under this Guarantee Agreement may be brought in any United States Federal or New York State court sitting in the Borough of Manhattan, The City of New York, New York to the extent that such court has subject matter jurisdiction over the controversy, and, by execution and delivery of this Guarantee Agreement, the Guarantor hereby irrevocably accepts, generally and unconditionally, the jurisdiction of the aforesaid courts, acknowledges their competence and irrevocably agrees to be bound by any judgment rendered in such proceeding. The Guarantor also irrevocably and unconditionally waives for the benefit of the Guarantee Trustee and the Holders any immunity from jurisdiction and any immunity from legal process (whether through service or notice, attachment prior 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, 200 First Stamford Place, Stamford, CT 06902, 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 Sullivan & Cromwell LLP, 125 Broad Street, New York, New York 10004, Attention: Scott Miller) 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 8.08 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.
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Section 8.09 Waiver of Jury Trial. EACH OF THE GUARANTOR AND THE GUARANTEE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE.
Section 8.10 Force Majeure. In no event shall the Guarantee Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, epidemics, 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.
* * *
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above written.
| PARTNERRE LTD., | ||
| as Guarantor | ||
| By: | /s/ Nick Burnet | |
| Name: Nick Burnet | ||
| Title: Executive Vice President and Chief Financial Officer | ||
| THE BANK OF NEW YORK MELLON, | ||
| as Guarantee Trustee | ||
| By: | /s/ Laurence J. O’Brien | |
| Name: Laurence J. O’Brien | ||
| Title: Vice President | ||
Exhibit 4.4
EXECUTION VERSION
FIRST SUPPLEMENTAL SUBORDINATED DEBT SECURITIES
GUARANTEE AGREEMENT
BETWEEN
PARTNERRE LTD.
(AS GUARANTOR)
AND
THE BANK OF NEW YORK MELLON
(AS GUARANTEE TRUSTEE)
DATED AS OF
September 22, 2020
| TABLE OF CONTENTS | ||
| Page | ||
| Article 1 | ||
| DEFINITIONS | ||
| Section 1.01 | Definitions | 1 |
| Article 2 | ||
| NO ADDITIONAL AMOUNTS | ||
| Section 2.01 | No Additional Amounts | 2 |
| Article 3 | ||
| TERMINATION | ||
| Section 3.01 | Termination | 2 |
| Article 4 | ||
| RANKING | ||
| Section 4.01 | Ranking | 2 |
| Section 4.02 | Pari Passu Guarantees | 2 |
| Article 5 | ||
| OTHER PROVISIONS | ||
| Section 5.01 | Tax Treatment of the Notes | 3 |
| Section 5.02 | Contractual Subordination | 3 |
| Article 6 | ||
| MISCELLANEOUS | ||
| Section 6.01 | Governing Law | 3 |
| -i- |
FIRST SUPPLEMENTAL SUBORDINATED DEBT SECURITIES GUARANTEE AGREEMENT
This FIRST SUPPLEMENTAL SUBORDINATED DEBT SECURITIES GUARANTEE AGREEMENT (this “Supplemental Guarantee Agreement” or this “Supplemental Guarantee”), dated as of September 22, 2020, is executed and delivered by PartnerRe Ltd., a Bermuda company (“PartnerRe” or the “Guarantor”), having its principal executive offices at 90 Pitts Bay Road, Pembroke HM 08, Bermuda, and The Bank of New York Mellon, a New York banking corporation, having its office located at 240 Greenwich Street, New York, NY 10286, as trustee (the “Guarantee Trustee”), supplementing the Subordinated Debt Securities Guarantee Agreement, dated as of September 22, 2020 (the “Base Guarantee Agreement” or the “Base Guarantee”), and the Base Guarantee, as amended or supplemented by this Supplemental Guarantee Agreement, the “Agreement” or the “Guarantee”), for the benefit of the Holders (as defined in the Base Guarantee Agreement) from time to time of the Notes (as defined herein) issued by PartnerRe Finance B LLC, a Delaware limited liability company (the “Issuer” or the “Company”).
WHEREAS, pursuant to an Indenture, dated as of September 22, 2020 (the “Base Indenture”), as amended and supplemented by the First Supplemental Indenture, dated as of September 22, 2020 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Issuer, the Guarantor and The Bank of New York Mellon, a New York banking corporation, as trustee thereunder, the Issuer is initially issuing $500,000,000 aggregate principal amount of its 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (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 indirectly benefit the Guarantor, the Guarantor executes and delivers this Supplemental Guarantee Agreement for the benefit of the Holders of the Notes.
Article 1
DEFINITIONS
Section 1.01 Definitions. Unless the context otherwise requires:
(a) a term not defined herein that is defined in the Base Guarantee Agreement or the Indenture has the same meaning when used in this Supplemental Guarantee Agreement;
(b) the definition of any term in this Supplemental Guarantee Agreement that is also defined in the Base Guarantee Agreement or the Indenture shall supersede the definition of such term in the Base Guarantee Agreement and the Indenture;
(c) references in the Base Guarantee Agreement to the Indenture shall be taken to be references to the Indenture (as defined herein);
(d) a term defined anywhere in this Supplemental Guarantee Agreement has the same meaning throughout;
(e) the singular includes the plural and vice versa;
(f) headings are for convenience of reference only and do not affect interpretation;
(g) the following terms have the meanings given to them in this Section 1.01(g):
“Agreement” or “Guarantee” has the meaning set forth in the preamble hereto.
“Base Guarantee Agreement” or “Base Guarantee” has the meaning set forth in the preamble hereto.
“Base Indenture” has the meaning set forth in the recitals hereto.
“First Supplemental Indenture” has the meaning set forth in the recitals hereto.
“Guarantee Trustee” has the meaning set forth in the preamble hereto.
“Indenture” has the meaning set forth in the recitals hereto.
“Issuer” or “Company” has the meaning set forth in the preamble hereto.
“PartnerRe” or “Guarantor” has the meaning set forth in the preamble hereto.
“Supplemental Guarantee Agreement” or “Supplemental Guarantee” has the meaning set forth in the preamble hereto.
Article 2
NO ADDITIONAL AMOUNTS
Section 2.01 No Additional Amounts. The Guarantor will not be required to pay any Additional Amounts with respect to the Notes or the Guarantee.
Article 3
TERMINATION
Section 3.01 Termination. This Guarantee in respect of the Notes shall terminate and be of no further force and effect upon full payment of the Redemption Price of all Notes and all other amounts then due and payable under the Indenture in respect of the Notes. Notwithstanding the foregoing, this 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 under this Agreement.
Article 4
RANKING
Section 4.01 Ranking. Solely with respect to the Guarantee of the Notes, for so long as any of the Notes remain outstanding, pursuant to Section 8.02 of the Base Guarantee Agreement, Section 6.02 of the Base Guarantee Agreement is hereby amending and restated in its entirety as follows:
| -2- |
Section 6.02 Ranking. The Guarantee shall constitute a junior subordinated unsecured obligation of the Guarantor and shall rank (i) junior and subordinated in right of payment to Guarantor Senior Indebtedness, it being understood that the terms of Article 16 of the Indenture shall apply to the obligations of the Guarantor under this Guarantee Agreement as if (w) such Article 16 were set forth herein in full, (x) such guarantee obligations provided were substituted for the term “Securities” appearing in such Article 16, (y) Guarantor Senior Indebtedness were substituted for the term “Senior Indebtedness” appearing in such Article 16 (as the term “Senior Indebtedness” is amended and supplemented by the First Supplemental Indenture) and (z) the Guarantor were substituted for the term “Company” appearing in such Article 16 and (ii) senior to the Guarantor’s common and preferred shares. For the purposes of the foregoing sentence, the Trustee and the Holders will have the right to receive and/or retain payments by the Guarantor only at such times as they may receive and/or retain payments in respect of the Securities of such series pursuant to the Indenture, including Article 16 thereof.
Section 4.02 Pari Passu Guarantees. Solely with respect to the Guarantee of the Notes, for so long as any of the Notes remain outstanding, pursuant to Section 8.02 of the Base Guarantee Agreement, Section 6.03 of the Base Guarantee Agreement is hereby amending and restated in its entirety as follows:
Section 6.03 Pari Passu Guarantees. For the purposes of this Guarantee in respect of the Notes, the Guarantee shall rank pari passu with any Indebtedness of the Guarantor that is by its terms equal in right of payment to the Guarantee of the Notes, including the guarantees by the Guarantor of the Junior Subordinated Capital Efficient Notes due 2066 issued by PartnerRe Finance II Inc.
Article 5
OTHER PROVISIONS
Section 5.01 Tax Treatment of the Notes. The Guarantor agrees to treat the Notes as indebtedness of PartnerRe U.S. Corporation for U.S. federal income tax purposes, unless otherwise required by applicable law.
Section 5.02 Contractual Subordination. The Guarantees of the Notes are junior subordinated unsecured obligations of the Guarantor and will be contractually subordinated in right of payment to any existing and future liabilities of the Guarantor’s subsidiaries (other than the Company, PartnerRe Finance II Inc. and PartnerRe Ireland Finance DAC), including amounts owed to holders of reinsurance and insurance policies issued by the Guarantor’s reinsurance and insurance company subsidiaries.
Article 6
MISCELLANEOUS
Section 6.01 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.
* * *
| -3- |
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
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| -4- |
THIS SUPPLEMENTAL GUARANTEE AGREEMENT is executed as of the day and year first above written.
| PARTNERRE LTD., | |||
| as Guarantor | |||
| By: | /s/ Nick Burnet | ||
| Name: | Nick Burnet | ||
| Title: | Executive Vice President and | ||
| Chief Financial Officer | |||
| THE BANK OF NEW YORK MELLON, | |||
| as Guarantee Trustee | |||
| By: | /s/ Laurence J. O’Brien | ||
| Name: | Laurence J. O’Brien | ||
| Title: | Vice President | ||
[First Supplemental Guarantee Agreement]
Exhibit 5.1
 | CONYERS DILL & PEARMAN LIMITED
Clarendon House, 2 Church Street Hamilton HM 11, Bermuda
Mail: PO Box HM 666, Hamilton HM CX, Bermuda T +1 441 295 1422
conyers.com |
| 22 September 2020 | Matter No.: 366994 +1 441 298 7859 |
PartnerRe Ltd.
Wellesley House South
90 Pitts Bay Road
Pembroke HM08
Bermuda
Dear Sirs
Re: PartnerRe Ltd. (the “Company”)
We have acted as special Bermuda legal counsel to the Company in connection with the filing by the Company with the U.S. Securities and Exchange Commission (the “Commission”) of a prospectus supplement dated 17 September 2020 (the “Prospectus Supplement”) to the prospectus dated 6 June 2019 (the “Base Prospectus”) in connection with a registration statement on Form F-3 (Registration Nos. 333-231716 and 333-231716-01) (the "Registration Statement") filed by the Company with the Commission (the “Registration Statement”) relating to the registration under the U.S. Securities Act of 1933, as amended, (the "Securities Act") of an offering by PartnerRe Finance B LLC (the “Issuer”) of an aggregate of US$500,000,000 principal amount of its 4.500% fixed-rate reset junior subordinated notes due 2050 (the “Notes”). The Notes are being issued under an indenture, dated as of 22 September 2020 (the “Base Indenture”), among the Issuer, the Company and The Bank of New York Mellon, as Indenture Trustee (the “Indenture Trustee”), as supplemented and amended by the first supplemental indenture, dated as of 22 September 2020 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”) among the Issuer, the Company and the Indenture Trustee, and will be fully and unconditionally guaranteed by the Company as guarantor pursuant to the subordinated debt securities guarantee agreement dated as of 22 September 2020, as supplemented and amended by a first supplemental subordinated debt securities guarantee agreement dated as of 22 September 2020 (the “First Supplemental Guarantee”) between the Company and The Bank of New York Mellon as Guarantee Trustee (as so supplemented and amended, the “Guarantee”).
For the purposes of giving this opinion, we have examined the following documents:
| (i) | a copy of the Base Prospectus, the Prospectus Supplement and the Registration Statement; |
| (ii) | an executed pdf copy of the Indenture; and |
| (iii) | an executed pdf copy of the Guarantee. |
The documents listed in items (ii) through (iii) above are herein sometimes collectively referred to as the “Documents” (which term, together with the defined terms in the first paragraph of this opinion, do not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto).
We have also examined the memorandum of association and the bye laws of the Company, each certified by the Assistant Secretary of the Company on 22 September 2020, unanimous written resolutions of its directors dated 23 May 2019, unanimous written resolutions of its directors dated 11 September 2020 and a written confirmation of an Authorised Officer of the Company dated 22 September 2020 (together, the “Resolutions”), each certified by the Assistant Secretary of the Company on 22 September 2020 and such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below.
We have assumed (a) the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken, (b) that where a document has been examined by us in draft or unexecuted form, it will be or has been executed and/or filed in the form of that draft or unexecuted form, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention, (c) the capacity, power and authority of each of the parties to the Documents, other than the Company, to enter into and perform its respective obligations under the Documents, (d) the due execution and delivery of the Documents by each of the parties thereto, other than the Company, and the physical delivery thereof by the Company with an intention to be bound thereby, (e) the accuracy and completeness of all factual representations made in the Registration Statement, the Base Prospectus, the Prospectus Supplement, the Documents and other documents reviewed by us, (f) that the Resolutions were passed at one or more duly convened, constituted and quorate meetings, or by unanimous written resolutions, remain in full force and effect and have not been rescinded or amended; (g) that there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein, (h) the validity and binding effect under the laws of the state of New York (the "Foreign Laws") of the Documents which are expressed to be governed by such Foreign Laws in accordance with their respective terms, (i) the validity and binding effect under the Foreign Laws of the submission by the Company pursuant to the Documents to the jurisdiction of the courts of United States Federal or New York court sitting in the Borough of Manhattan, The City of New York, New York (the "Foreign Courts"), (j) that none of the parties to the Documents, other than the Company, carries on business from premises in Bermuda at which it employs staff and pays salaries and other expenses, (k) at the time of issue of the Notes, the general permission to the issue and subsequent transfer of securities, other than equity securities, of the Bermuda Monetary Authority will not have been revoked or amended, and (l) at the time of issue of the Notes, the Company will be able to pay its liabilities as they become due .
2
The obligations of the Company under the Documents (a) will be subject to the laws from time to time in effect relating to bankruptcy, insolvency, liquidation, possessory liens, rights of set off, reorganisation, amalgamation, merger, moratorium or any other laws or legal procedures, whether of a similar nature or otherwise, generally affecting the rights of creditors as well as applicable international sanctions, (b) will be subject to statutory limitation of the time within which proceedings may be brought, (c) will be subject to general principles of equity and, as such, specific performance and injunctive relief, being equitable remedies, may not be available, (d) may not be given effect to by a Bermuda court, whether or not it was applying the Foreign Laws, if and to the extent they constitute the payment of an amount which is in the nature of a penalty, and (e) may not be given effect by a Bermuda court to the extent that they are to be performed in a jurisdiction outside Bermuda and such performance would be illegal under the laws of that jurisdiction. Notwithstanding any contractual submission to the jurisdiction of specific courts, a Bermuda court has inherent discretion to stay or allow proceedings in the Bermuda courts.
We express no opinion as to the enforceability of any provision of the Documents which provides for the payment of a specified rate of interest on the amount of a judgment after the date of judgment, which purports to fetter the statutory powers of the Company or which purports to establish the exclusive jurisdiction of any courts.
We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda. This opinion is issued solely for the purposes of the filing of the Prospectus Supplement and the offering of the Notes, including the Guarantee by the Company, and is not to be relied upon in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
| 1. | The Company is duly incorporated and existing under the laws of Bermuda in good standing (meaning solely that it has not failed to make any filing with any Bermuda government authority or to pay any Bermuda government fees or tax which would make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda). |
| 2. | The Company has the necessary corporate power and authority to enter into and perform its obligations under the Documents. The execution and delivery of the Documents by the Company and the performance by the Company of its obligations thereunder will not violate the memorandum of association or bye laws of the Company nor any applicable law, regulation, order or decree in Bermuda. |
| 3. | The Company has taken all corporate action required to authorize its execution, delivery and performance of the Documents. The Documents have been duly executed and delivered by or on behalf of the Company and constitute the valid and binding obligations of the Company in accordance with the terms thereof. |
We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 6-K to be incorporated by reference in the Registration Statement and to the reference to our firm under the caption “Validity of the Notes” in the Prospectus Supplement and “Enforcement of Civil Liabilities under United States Federal Securities Laws” and “Validity of Securities” in the Base Prospectus, each forming part of the Registration Statement. In giving this consent, we do not admit that we are experts within the meaning of section 11 of the Securities Act or that we are in the category of persons whose consent is required under section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Yours faithfully,
/s/ Conyers Dill & Pearman Limited
Conyers Dill & Pearman Limited
3
Exhibit 5.2
[Sullivan & Cromwell LLP Letterhead]
September 22, 2020
PartnerRe Ltd.,
90 Pitts Bay Road,
Pembroke HM08,
Bermuda.
PartnerRe Finance B LLC,
200 First Stamford Place,
Stamford, Connecticut 06902.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the “Securities Act”) of $500,000,000 principal amount of 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (the “Securities”) of PartnerRe Finance B LLC, a Delaware limited liability company (the “Company”), subject to an unconditional guarantee as to payment of principal, interest and other payment obligations (the “Guarantee”) of PartnerRe Ltd., an exempted company limited by shares incorporated under the laws of Bermuda (the “Guarantor”), pursuant to the Subordinated Debt Securities Indenture, dated as of September 22, 2020, as amended and supplemented by the First Supplemental Subordinated Debt Securities Indenture, dated as of September 22, 2020 (as so amended and supplemented, the “Indenture”), among the Company, the Guarantor and The Bank of New York Mellon, as Trustee (the “Indenture Trustee”), and the Subordinated Debt Securities Guarantee Agreement, dated as of September 22, 2020, as amended and supplemented by the First Supplemental Subordinated Debt Securities Guarantee Agreement, dated as of September 22, 2020 (as so amended and supplemented, the “Guarantee Agreement”), between the Guarantor and The Bank of New York Mellon, as Guarantee Trustee (the “Guarantee Trustee”), we, as your counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion that (i) the Securities constitute the valid and legally binding obligations of the Company and (ii) the Guarantee constitutes the valid and legally binding obligation of the Guarantor, subject in the cases of clauses (i) and (ii) above, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
PartnerRe Ltd. PartnerRe Finance B LLC | -2- |
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus, prospectus supplement or other offering material relating to the offer and sale of the Securities.
The foregoing opinion is limited to the Federal laws of the United States and the laws of the State of New York, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. With respect to all matters of Bermuda law, we note that you have received an opinion, dated the date hereof, of Conyers Dill & Pearman Limited.
We have relied as to certain factual matters on information obtained from public officials, officers of the Company and the Guarantor and other sources believed by us to be responsible, and we have assumed that each of the Indenture and the Guarantee Agreement have been duly authorized, executed and delivered by the Guarantor, insofar as the laws of Bermuda are concerned, that the Indenture and the Guarantee Agreement have been duly authorized, executed and delivered by the Indenture Trustee and the Guarantee Trustee, as the case may be, that the Indenture Trustee’s certificate of authentication of the Securities has been manually signed by one of the Indenture Trustee’s authorized officers, and that the signatures on all documents examined by us are genuine, assumptions which we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 6-K to be incorporated by reference in the Registration Statement relating to the Securities and the Guarantee and to the reference to us under the heading “Validity of the Notes” in the Prospectus Supplement relating to the Securities and the Guarantee, dated September 17, 2020. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ SULLIVAN AND CROMWELL LLP
Exhibit 99.1
PartnerRe Ltd. Announces Closing of Fixed-Rate Reset Junior Subordinated Notes Offering and Delivery of Notice of Redemption
PEMBROKE, Bermuda, September 22, 2020 – PartnerRe Ltd. (“PartnerRe”) announced today that its subsidiary, PartnerRe Finance B LLC (“Finance B”), has completed its offering of $500 million aggregate principal amount of 4.500% Fixed-Rate Reset Junior Subordinated Notes due 2050 (the “Notes”). The Notes are unsecured junior subordinated obligations of Finance B and are fully and unconditionally guaranteed by PartnerRe on an unsecured junior subordinated basis.
As previously announced, PartnerRe intends to use the net proceeds from the offering for general corporate purposes, including to redeem its outstanding 5.875% Series F Non-Cumulative Preferred Shares (the “Series F Preferred Shares”), as well as the repayment of other indebtedness.
In that regard, PartnerRe Ltd. also announced that it expects to redeem all of its outstanding Series F Preferred Shares on October 22, 2020, at a redemption price of $25 per share, plus an amount equal to the portion of the quarterly dividend attributable to the current dividend period to, but excluding, October 22, 2020. From and after October 22, 2020, the Series F Preferred Shares will cease to be entitled to dividends, except to the extent provided in the certification of designation governing the Series F Preferred Shares.
Payment of the redemption price will be made upon presentation and surrender of the Series F Preferred Shares to Computershare Shareowner Services, Redemption Agent, by mail or by overnight delivery to 150 Royall Street, Canton, MA 02021, Attention: Reorg Dept.
This press release is for informational purposes only and does not constitute an offer to sell or a solicitation of an offer to buy, any of the securities described herein or a notice of redemption under the certificate of designations governing the Series F Preferred Shares. This press release is qualified in its entirety by reference to the notice of redemption issued by PartnerRe.
PartnerRe Ltd. Wellesley House, 90 Pitts Bay Road Pembroke, Bermuda HM 08 |
Telephone +1 441 292 0888 Fax +1 441 292 6080
|
This press release may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, and which are made pursuant to the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995. These statements are based on the beliefs and assumptions of our management. Generally, forward-looking statements include information concerning possible or assumed future actions, events or our results of operations. Forward-looking statements are subject to significant business, economic and competitive risks and uncertainties that could cause actual results to differ, potentially materially, from those reflected in such forward-looking statements. Forward-looking statements are not guarantees of performance. We caution that undue reliance should not be placed on any forward-looking statements, which speak only as of the date of this press release. We do not undertake any duty or responsibility to update any of these forward-looking statements to reflect events or circumstances after the date of this press release or to reflect actual outcomes. Additional factors that may affect future results and conditions are described in our filings with the SEC, including our Annual Report on Form 20-F for the year ended December 31, 2019.
PartnerRe Ltd. is a leading global reinsurer that helps insurance companies reduce their earnings volatility, strengthen their capital and grow their businesses through reinsurance solutions. Risks are underwritten on a worldwide basis through the Company’s three segments: P&C, Specialty, and Life and Health. For the year ended December 31, 2019, total revenues were $7.9 billion. At June 30, 2020, total assets were $25.2 billion, total capital was $8.3 billion and total shareholders’ equity was $6.9 billion. PartnerRe maintains strong financial strength ratings as follows: A.M. Best A+ / Moody’s A1 / Standard & Poor’s A+.
| Contacts: | PartnerRe Ltd. |
| (441) 292-0888 | |
| Media Contact: Celia Powell Investor Contact: Ryan Lipschutz |
PartnerRe Ltd. Wellesley House, 90 Pitts Bay Road Pembroke, Bermuda HM 08 |
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