EXHIBIT 99.2
REMARKETING AGREEMENT
November o, 2001
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Ladies and Gentlemen:
PartnerRe Ltd., a Bermuda company (the "Company") has requested that Morgan
Stanley & Co. Incorporated (the "Remarketing Agent") act as remarketing agent in
connection with the Remarketing of the Series B cumulative redeemable preferred
shares, par value $1.00 per share, issued by the Company (the "Preferred
Shares"), the terms of which are set forth in the certificate of designation,
rights and preferences of the Preferred Shares approved as of November o, 2001
by the Board of Directors (the "Certificate of Designation"), dated as of
November o, 2001.
Section 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, dated as of November
o, 2001 (the "Purchase Contract Agreement"), between the Company and JPMorgan
Chase Bank, as Purchase Contract Agent (the "Purchase Contract Agent").
(b) As used in this Agreement, the following terms have the following
meanings:
"Applicable Spread" has the meaning set forth in the Certificate of Designation.
"Moody's" shall mean Moody's Investors Service, Inc.
"Preliminary Prospectus" means any preliminary prospectus relating to the
Remarketed Preferred Shares included in the Registration Statement, including
the documents incorporated by reference therein as of the date of such
Preliminary Prospectus; and any reference to any amendment or supplement to such
Preliminary Prospectus shall be deemed to refer to and include any documents
filed after the date of such Preliminary Prospectus, under the Exchange Act, and
incorporated by reference in such Preliminary Prospectus.
"Prospectus" means the prospectus relating to the Remarketed Preferred Shares,
in the form in which first filed, or transmitted for filing, with the Commission
after the effective date of the Registration Statement pursuant to Rule 424(b),
including the documents incorporated by reference therein as of the date of such
Prospectus; and any reference to any amendment or supplement to such Prospectus
shall be deemed to refer to and include any documents filed after
the date of such Prospectus, under the Exchange Act, and incorporated by
reference in such Prospectus.
"Registration Statement" means a registration statement under the Securities Act
prepared by the Company covering, inter alia, the Remarketing of the Preferred
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Shares pursuant to Section 5(a) hereunder, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in such
registration statement, and any post-effective amendments thereto.
"Remarketed Preferred Shares" means the Preferred Shares subject to the
Remarketing, as identified to the Remarketing Agent by the Purchase Contract
Agent, after 11:00 a.m., New York City time, on the fifth Business Day
immediately preceding o, 2004.
"Remarketing" means the remarketing of the Remarketed Preferred Shares pursuant
to the Remarketing Procedures.
"Remarketing Materials" means the Preliminary Prospectus, the Prospectus or any
other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"Remarketing Procedures" means the procedures in connection with the Remarketing
of the Preferred Shares described in the Transaction Documents.
"Reset Rate" shall mean the dividend rate per annum, on the Preferred Shares, as
determined by the Remarketing Agent, that results from the Remarketing.
"S&P" shall mean Standard & Poor's Ratings Services.
"Series A preferred shares" means the 8% Series A Cumulative Preferred Shares of
the Company, par value $1.00 per share.
"Six-Month Benchmark Treasury Rate" shall mean the meaning set forth in the
Certificate of Designation.
"Transaction Documents" means the Purchase Contract Agreement, the Pledge
Agreement and the Certificate of Designation, collectively.
Section 2. Appointment and Obligations of the Remarketing Agent.
(a) The Company hereby appoints Morgan Stanley & Co. Incorporated as
exclusive remarketing agent, and, subject to the terms and conditions set forth
herein, Morgan Stanley & Co. Incorporated hereby accepts appointment as
Remarketing Agent, for the purpose of (1) Remarketing Remarketed Preferred
Shares on behalf of the holders thereof and (2) performing such other duties as
are assigned to the Remarketing Agent in the Remarketing Procedures, all in
accordance with and pursuant to the Remarketing Procedures.
(b) On the third Business Day immediately preceding the Purchase Contract
Settlement Date (the "Remarketing Date"), the Remarketing Agent shall use
reasonable efforts
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to remarket the Preferred Shares tendered or deemed tendered for purchase at a
price per Preferred Share (the "Remarketing Price") equal to 100.25% of the
stated liquidation preference per Preferred Share, plus any accrued and unpaid
dividends thereron.
(c) If, as a result of the efforts described in Section 2(b), the
Remarketing Agent has determined that it will be able to remarket all of the
Preferred Shares tendered or deemed tendered for purchase at a price equal to
the Remarketing Price, the Remarketing Agent shall determine the Reset Rate,
which shall be the rate per annum (rounded to the nearest one-thousandth (0.001)
of one percent per annum) sufficient to cause the then-current market value per
share of the Preferred Shares to be equal to the Remarketing Price, which rate
shall be the lowest rate per annum that in the sole reasonable discretion of the
Remarketing Agent will enable it to remarket all of the Preferred Shares
tendered or deemed tendered for Remarketing at a price equal to the Remarketing
Price.
(d) If none of the Holders of the Preferred Shares or the holders of the
PEPS Units elect to have Preferred Shares remarketed in the Remarketing, the
Reset Rate shall be the rate determined by the Remarketing Agent, in its sole
reasonable discretion, as the rate that would have been established had a
Remarketing been held on the Remarketing Date.
(e) If, by 4:00 p.m., New York City time, on the Remarketing Date, the
Remarketing Agent is unable to remarket all of the Preferred Shares tendered or
deemed tendered for purchase at a price per share equal to the Remarketing Price
pursuant to the terms and conditions hereof, a Failed Remarketing shall be
deemed to have occurred, and the Remarketing Agent shall so advise by telephone
the Depositary, the Purchase Contract Agent and the Company. In the event of a
Failed Remarketing, the Reset Rate shall equal the Six-Month Benchmark Treasury
Rate plus the Applicable Spread. Whether or not there has been a Failed
Remarketing will be determined in the sole reasonable discretion of the
Remarketing Agent.
(f) By approximately 4:30 p.m., New York City time, on the Remarketing
Date (provided that there has not been a Failed Remarketing), the Remarketing
Agent shall advise, by telephone:
(1) the Depositary, the Purchase Contract Agent and the Company of
the Reset Rate determined in the Remarketing and the number of Remarketed
Preferred Shares sold in the Remarketing;
(2) each purchaser (or the Depositary Participant thereof) of
Remarketed Preferred Shares of the Reset Rate and the number of
Remarketed Preferred Shares such purchaser is to purchase; and
(3) each purchaser to give instructions to its Depositary
Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Remarketed Preferred
Shares purchased through the facilities of the Depositary.
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The Remarketing Agent shall also, if required by the Securities Act or
the rules and regulations promulgated thereunder, deliver to each purchaser a
Prospectus in connection with the Remarketing.
(g) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Preferred Shares, whether in the
Remarketing or otherwise, and shall in no way be obligated to provide funds to
make payment upon tender of Remarketed Preferred Shares for Remarketing or to
otherwise expend or risk its own funds or incur or to be exposed to financial
liability in the performance of its duties under this Agreement, and without
limitation of the foregoing, the Remarketing Agent shall not be deemed an
underwriter of the Remarketed Preferred Shares. Neither the Company nor the
Remarketing Agent shall be obligated in any case to provide funds to make
payment upon tender of the Remarketed Preferred Shares for Remarketing.
Section 3. Representations and Warranties of the Company.
The Company represents and warrants (i) on and as of the date any Remarketing
Materials are first distributed in connection with the Remarketing (the
"Commencement Date"), (ii) on and as of the Remarketing Date and (iii) on and as
of the Purchase Contract Settlement Date, that:
(a) Each of the representations and warranties of the Company as set
forth in Sections [o through o] of the Underwriting Agreement dated as of
November o, 2001 (the "Underwriting Agreement") among the Company and the
Underwriters identified in Schedule I thereto, is true and correct as if made on
each of the dates specified above; provided that, for purposes of this Section
3(a), any reference in such sections of the Underwriting Agreement to (i) the
"Registration Statement" or the "Prospectus" shall be deemed to refer to such
terms as defined herein and (ii) the "Closing Date" or the "Additional Closing
Date" shall be deemed to refer to the Remarketing Date as defined herein.
(b) The Registration Statement, if any, in the form heretofore delivered
or to be delivered to the Remarketing Agent, has been declared effective by the
Commission in such form; and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission.
(c) The documents incorporated by reference in the Prospectus, when they
were filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents are filed with the Commission, will
conform in all material respects to the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder, and will not contain an
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, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and
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warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information relating to the Remarketing Agent furnished
in writing to the Company by the Remarketing Agent or its counsel expressly for
use in the Prospectus.
(d) The Registration Statement, if any, conforms (and the Prospectus,
if any, and any further amendments or supplements to the Registration Statement
or the Prospectus, when they become effective or are filed with the Commission,
as the case may be, will conform) in all material respects to the requirements
of the Securities Act and the rules and regulations promulgated thereunder, and
the Registration Statement and the Remarketing Materials (and any amendment or
supplement thereto) as of their respective effective or filing dates and as of
the Commencement Date, Remarketing Date and Purchase Contract Settlement Date do
not and 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; provided that no representation and warranty
is made as to any statement of eligibility on Form T-1 filed or incorporated by
reference as part of the Registration Statement, the Prospectus or the
Remarketing Materials, or as to information relating to the Remarketing Agent
contained in or omitted from the Registration Statement, the Prospectus or the
Remarketing Materials in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
Section 4. Fees.
For the performance of its services as Remarketing Agent hereunder, the
Remarketing Agent shall retain from the proceeds of the Remarketing an amount
equal to 0.25% of the $50 Stated Amount of all Remarketed Preferred Shares.
Section 5. Covenants of the Company.
The Company covenants and agrees as follows:
(a) If and to the extent the Remarketed Preferred Shares are required
(in the view of counsel, which need not be in the form of a written opinion, for
either the Remarketing Agent or the Company) to be registered under the
Securities Act as in effect at the time of the Remarketing,
(1) to prepare the Registration Statement and the Prospectus, in a
form approved by the Remarketing Agent, to file any such Prospectus
pursuant to the Securities Act within the period required by the
Securities Act and the rules and regulations thereunder and to use its
reasonable efforts to cause the Registration Statement to be declared
effective by the Commission prior to the second Business Day immediately
preceding the Remarketing Date;
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(2) to file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Remarketing Agent, be
required by the Securities Act or requested by the Commission;
(3) to advise the Remarketing Agent, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Remarketing Agent with copies
thereof;
(4) to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a Prospectus is required in
connection with the offering or sale of the Remarketed Preferred Shares; and
(5) to advise the Remarketing Agent, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of the Prospectus, of the suspension of the
qualification of any of the Remarketed Preferred Shares for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information, and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(6) to furnish promptly to the Remarketing Agent such copies of the
following documents as the Remarketing Agent shall reasonably request: (A)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits); (B) the
Preliminary Prospectus and any amended or supplemented Preliminary Prospectus,
(C) the Prospectus and any amended or supplemented Prospectus; and (D) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if at any time when delivery of a prospectus is required in
connection with the Remarketing, any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading, or if
for any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Remarketing Agent and, upon
its request, to file such document and to prepare and furnish without charge to
the Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time reasonably request of an amended or
supplemented Prospectus that will correct such statement or omission or effect
such compliance.
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(7) prior to filing with the Commission (A) any amendment to the
Registration Statement or supplement to the Prospectus or (B) any
Prospectus pursuant to Rule 424 under the Securities Act, to furnish a
copy thereof to the Remarketing Agent and counsel to the Remarketing
Agent; and not to file any such amendment or supplement that shall be
reasonably disapproved by the Remarketing Agent promptly after reasonable
notice.
(8) as soon as practicable, but in any event not later than eighteen
months, after the effective date of the Registration Statement, to make
"generally available to its security holders" an "earnings statement" of
the Company and its subsidiaries complying with (which need not be
audited) Section 11(a) of the Securities Act and the rules and
regulations thereunder (including, at the option of the Company, Rule
158). The terms "generally available to its security holders" and
"earnings statement" shall have the meanings set forth in Rule 158.
(9) to take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Preferred Shares for offer and
sale under the securities or "blue sky" laws of such jurisdictions as the
Remarketing Agent may reasonably request; provided that in no event shall
the Company be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(b) To pay: (1) the costs incident to the preparation and printing of the
Registration Statement, if any, any Prospectus and any other Remarketing
Materials and any amendments or supplements thereto; (2) the costs of
distributing the Registration Statement, if any, any Prospectus and any other
Remarketing Materials and any amendments or supplements thereto; (3) any fees
and expenses of qualifying the Remarketed Preferred Shares under the securities
laws of the several jurisdictions as provided in Section 5(a)(9) and of
preparing, printing and distributing a Blue Sky Memorandum, if any (including
any related fees and expenses of counsel to the Remarketing Agent); (4) all
other costs and expenses incident to the performance of the obligations of the
Company and the Remarketing Agent hereunder; and (5) the reasonable fees and
expenses of counsel to the Remarketing Agent in connection with their duties
hereunder.
(c) To furnish the Remarketing Agent with such information and documents
as the Remarketing Agent may reasonably request in connection with the
transactions contemplated hereby, and to make reasonably available to the
Remarketing Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent such information that parties would customarily require in
connection with a due diligence investigation conducted in accordance with
applicable securities laws and to cause the Company's officers, directors,
employees and accountants to participate in all such discussions and to supply
all such information reasonably requested by any such Person in connection with
such investigation.
Section 6. Conditions to the Remarketing Agent's Obligations.
The obligations of the Remarketing Agent hereunder are subject to the following
conditions:
(a) The Prospectus, if any, shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement, if any, or any part thereof shall
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have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) (1) Trading generally shall not have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange or the National Association of Securities Dealers, Inc.,
(2) trading of any securities of the Company shall not have been suspended on
any exchange or in any over-the-counter market, (3) a general moratorium on
commercial banking activities in New York shall not have been declared by either
Federal or New York State authorities or, in Bermuda or France, by Bermuda or
French authorities, as the case may be, or (4) there shall not have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Remarketing Agent, is material
and adverse and in the case of any of the events specified in clauses (1), (2),
(3) and (4), such event, singly or together with any other such event, makes it,
in the judgment of the Remarketing Agent, impracticable to proceed with the
Remarketing.
(c) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the Remarketing
Date, and the Company, the Purchase Contract Agent and the Collateral Agent
shall have performed in all material respects all covenants and agreements
contained herein or in the Purchase Contract Agreement or Pledge Agreement to be
performed on their part at or prior to the Remarketing Date.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of the Chief Executive Officer and the
Treasurer satisfactory to the Remarketing Agent stating that: (1) no order
suspending the effectiveness of the Registration Statement, if any, or
prohibiting the sale of the Remarketed Preferred Shares is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of such
officers, threatened by the Commission; (2) the representations and warranties
of the Company in Section 3 are true and correct on and as of the Remarketing
Date and the Company has performed in all material respects all covenants and
agreements contained herein to be performed on its part at or prior to the
Remarketing Date; and (3) the Registration Statement, as of its effective date,
and the Remarketing Materials, as of their respective dates, did not contain any
untrue statement of a material fact and did not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and the Prospectus did not contain any untrue statement of material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(e) On the Remarketing Date, the Remarketing Agent shall have received a
letter addressed to the Remarketing Agent and dated such date, in form and
substance satisfactory to the Remarketing Agent, of Deloitte & Touche, LLP,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial information
contained in the Remarketing Materials, if any.
(f) Each of (1) o, General Counsel of the Company, and (2) o, outside
counsel to the Company, shall have furnished to the Remarketing Agent its
opinion, addressed to the Remarketing Agent and dated the Remarketing Date, in
form and substance reasonably
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satisfactory to the Remarketing Agent addressing such matters as are set forth
in such counsel's opinion furnished pursuant to Sections [o and o],
respectively, of the Underwriting Agreement, adapted as necessary to relate to
the securities being remarketed hereunder and to the Remarketing Materials, if
any.
(g) Davis Polk & Wardwell, counsel for the Remarketing Agent, shall have
furnished to the Remarketing Agent its opinion, addressed to the Remarketing
Agent and dated the Remarketing Date, in form and substance satisfactory to the
Remarketing Agent.
(h) Subsequent to the execution and delivery of this Agreement and prior
to the Remarketing Date, there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate an improvement, in the
rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent and each person, if any, who controls the Remarketing Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, if any, or any amendment thereof, any Preliminary
Prospectus or the Prospectus, if any (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any other
Remarketing Materials, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Remarketing Agent furnished to the Company in writing by the Remarketing Agent
expressly for use therein; provided that the foregoing indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of the
Remarketing Agent from whom the person asserting any such losses, claims,
damages or liabilities purchased Remarketed Preferred Shares, or any person
controlling such Remarketing Agent, if a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Remarketing
Agent to such person, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of the Remarketed Preferred Shares to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such losses, claims, damages or liabilities,
unless such failure is the result of noncompliance by the Company with Section
5(a)(6) hereof. With respect to all other matters, the Company also agrees to
indemnify the Remarketing Agent and each person, if any, who controls the
Remarketing Agent within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in
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connection with defending or investigating any such action or claim) to which
the Remarketing Agent, or any person controlling such Remarketing Agent, may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based on this Agreement, the Transaction Documents, the transactions
contemplated hereby and thereby, or any actions or inactions on behalf of the
Remarketing Agent, or any person controlling such Remarketing Agent, in
connection therewith; provided, however, that the Company shall not be liable
for indemnification or otherwise for any such loss, claim, damage or liability
to the extent arising from gross negligence or willful misconduct of the
Remarketing Agent.
(b) The Remarketing Agent agrees to indemnify and hold harmless the
Company, the directors of the Company, the officers of the Company who signed
the Registration Statement, if any, and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, if any, or any amendment
thereof, any Preliminary Prospectus or the Prospectus, if any (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any other Remarketing Materials, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but only with
reference to information relating to such Remarketing Agent furnished to the
Company in writing by the Remarketing Agent expressly for the use in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a)or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Remarketing Agent and all persons, if
any, who control the Remarketing Agent within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act and (ii) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its
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officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Remarketing Agent and such control persons of the
Remarketing Agent, such firm shall be designated in writing by the Remarketing
Agent. In the case of any such separate firm for the Company, and such
directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
Section 8. Contribution.
(a) To the extent the indemnification provided for in Section 7(a) or
7(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such subsections, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the Remarketing or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party or parties on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Remarketing Agent on the other hand in connection with the Remarketing
shall be deemed to be in the same respective proportions as the total stated
liquidation preference of Remarketed Preferred Shares less the fee paid to the
Remarketing Agent on the one hand and the fee paid to the Remarketing Agent on
the other hand bear to the total liquidation preference of the Remarketed
Preferred Shares. The relative fault of the Company on the one hand and the
Remarketing Agent on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the
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Remarketing Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(b) The Company and the Remarketing Agent agree that it would not be just
or equitable if contribution pursuant to this Section 8 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in Section 8(a). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it
under Section 4 exceed the amount of any damages that the Remarketing Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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. The remedies provided for in Section 7 and this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(c) The indemnity and contribution provisions contained in Section 7 and
this Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of any termination of this Agreement, any investigation made
by or on behalf of the Remarketing Agent or any person controlling the
Remarketing Agent, or the Company, its officers or directors or any person
controlling the Company and the completion of the Remarketing.
Section 9. Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 60 days' prior written notice, in the case of a resignation, to the
Company and the Depositary and, in the case of a removal, to the removed
Remarketing Agent and the Depositary; provided, however, that:
(a) the Remarketing Agent may not resign without reasonable cause; and
(b) no such resignation nor any such removal shall become effective until
the Company shall have appointed at least one nationally recognized
broker-dealer as successor Remarketing Agent and such successor Remarketing
Agent shall have entered into a remarketing agreement with the Company, in which
it shall have agreed to conduct the Remarketing in accordance with the
Remarketing Procedures in all material respects.
In any such case, the Company will use its reasonable efforts to appoint a
successor Remarketing Agent and enter into such a remarketing agreement with
such person as soon as reasonably practicable. The provisions of Section 7 and
Section 8 shall survive the resignation or removal of any Remarketing Agent
pursuant to this Agreement.
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Section 10. Dealing in the Remarketed Preferred Shares.
The Remarketing Agent, when acting as a Remarketing Agent or in its individual
or any other capacity, may, to the extent permitted by law, buy, sell, hold and
deal in any of the Remarketed Preferred Shares. The Remarketing Agent may
exercise any vote or join in any action which any beneficial owner of Remarketed
Preferred Shares may be entitled to exercise or take pursuant to the Certificate
of Designation with like effect as if it did not act in any capacity hereunder.
The Remarketing Agent, in its individual capacity, either as principal or agent,
may also engage in or have an interest in any financial or other transaction
with the Company as freely as if it did not act in any capacity hereunder.
Section 11. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent shall be determined solely
by the express provisions of this Agreement and the Transaction Documents. No
implied covenants or obligations of or against the Remarketing Agent shall be
read into this Agreement or any of the Transaction Documents. In the absence of
bad faith on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it, as to the truth of the
statements expressed in any of such documents. The Remarketing Agent shall be
protected in acting upon any document or communication reasonably believed by it
to have been signed, presented or made by the proper party or parties except as
otherwise set forth herein. The Remarketing Agent, acting under this Agreement,
shall incur no liability to the Company or to any holder of Remarketed Preferred
Shares in its individual capacity or as Remarketing Agent for any action or
failure to act, on its part in connection with a Remarketing or otherwise,
except if such liability is judicially determined to have resulted from its
failure to comply with the material terms of this Agreement or the gross
negligence or willful misconduct on its part. The provisions of this Section 11
shall survive the termination of this Agreement and shall survive the
resignation or removal of any Remarketing Agent pursuant to this Agreement.
Section 12. Termination.
This Agreement shall automatically terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent pursuant
to Section 9. If this Agreement is terminated pursuant to any of the other
provisions hereof, except as otherwise provided herein, the Company shall not be
under any liability to the Remarketing Agent and the Remarketing Agent shall not
be under any liability to the Company, except that if this Agreement is
terminated by the Remarketing Agent because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the conditions
of this Agreement, the Company will reimburse the Remarketing Agent for all of
its out-of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it. Section 7, Section 8 and Section 11 hereof shall
survive the termination of this Agreement or the resignation or removal of the
Remarketing Agent.
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Section 13. Notices.
All statements, requests, notices and agreements hereunder shall be in writing,
and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail, telex
or facsimile transmission to Morgan Stanley & Co. Incorporated, Attention: o
(fax: o); and
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to PartnerRe Ltd., Chesney House, 96 Pitts Bay Road,
Hamilton HM 08, Bermuda, Attention: General Counsel (Fax: 442-292-3060), with a
copy to the same address, Attention: John S. D'Alimonte, Esq. (Fax:
212-728-8111).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 14. Persons Entitled to Benefit of Agreement.
This Agreement shall inure to the benefit of and be binding upon the Remarketing
Agent and the Company and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (x) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the Remarketing Agent and the person or persons, if any, who control
the Remarketing Agent within the meaning of Section 15 of the Securities Act and
(y) the indemnity agreement of the Remarketing Agent contained in Section 7(b)
of this Agreement shall be deemed to be for the benefit of the Company's
directors and officers who sign the Registration Statement, if any, and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section 15. Survival.
The respective indemnities, representations, warranties and agreements of the
Company and the Remarketing Agent contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive the
Remarketing and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling any
of them.
Section 16. Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of New York, without regard to conflicts of laws principles.
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Section 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if executed in
more than one counterpart, the executed counterparts shall each be deemed to be
an original but all such counterparts shall together constitute one and the same
instrument.
Section 18. Headings.
The headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
Section 19. Severability.
If any provision of this Agreement shall be held or deemed to be or shall, in
fact, be invalid, inoperative or unenforceable as applied in any particular case
in any or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule or public policy or for any other reason, then, to
the extent permitted by law, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstance or jurisdiction, or of rendering any other provision or
provisions of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 20. Amendments.
This Agreement may be amended by an instrument in writing signed by the parties
hereto. The Company agrees that it will not enter into, cause or permit any
amendment or modification of the Transaction Documents or any other instruments
or agreements relating to the Preferred Shares or the PEPS Units that would in
any way adversely affect the rights, duties and obligations of the Remarketing
Agent, without the prior written consent of the Remarketing Agent.
Section 21. Successors and Assigns.
The rights and obligations of the Company hereunder may not be assigned or
delegated to any other Person without the prior written consent of the
Remarketing Agent. The rights and obligations of the Remarketing Agent hereunder
may not be assigned or delegated to any other Person (other than an affiliate of
the Remarketing Agent) without the prior written consent of the Company.
If the foregoing correctly sets forth the agreement between the Company and the
Remarketing Agent, please indicate your acceptance in the space provided for
that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
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Very truly yours,
PARTNERRE LTD.
By:________________________________________
Name:
Title:
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By:___________________________________
Name:
Title: