Exhibit 99.4
$200,000,000
PartnerRe Capital Trust I
7.90% Preferred Securities
(Liquidation Amount $25 per Security)
Guaranteed by
PartnerRe Ltd.
Underwriting Agreement
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November 13, 2001
MORGAN STANLEY & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
SALOMON SMITH BARNEY INC.
UBS WARBURG LLC
as Representatives of the Underwriters listed
in Schedule I hereto
c/o MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
Ladies and Gentlemen:
PartnerRe Capital Trust I, a Delaware business trust (the "Trust"),
proposes to issue and sell to the several Underwriters listed in Schedule I
hereto (the "Underwriters"), subject to the terms and conditions stated herein,
an aggregate of $200,000,000 of its 7.90% Preferred Securities, liquidation
amount $25 per share (the "Preferred Securities"), representing an undivided
beneficial ownership interest in the assets of the Trust. The 7.90% Preferred
Securities will be guaranteed on a limited basis by PartnerRe Ltd., a Bermuda
company (the "Guarantor") to the extent set forth in the Preferred Securities
Guarantee (the "Preferred Securities Guarantee"). Morgan Stanley & Co.
Incorporated, First Union Securities, Inc., Salomon Smith Barney Inc. and UBS
Warburg LLC shall act as the representatives (the "Representatives") of the
several Underwriters.
The proceeds of the sale of the Preferred Securities and of common
securities of the Trust (the "Common Securities", and together with the
Preferred Securities, the "Trust Securities") are to be invested in junior
subordinated debt securities due December 31, 2031 (the "Junior Subordinated
Debt Securities")
of PartnerRe Finance I Inc. ("PartnerRe Finance") to be issued pursuant to a
junior subordinated indenture, to be dated as of the Closing Date (the
"Indenture"), between PartnerRe Finance, the Guarantor and JPMorgan Chase Bank,
as Trustee (the "Indenture Trustee"). The Guarantor will fully and
unconditionally guarantee on a junior subordinated basis (the "Junior
Subordinated Debt Securities Guarantee") payment on the Junior Subordinated Debt
Securities to the extent set forth in a Junior Subordinated Debt Guarantee
Agreement (the "Junior Subordinated Debt Securities Guarantee Agreement") to be
entered into between the Guarantor and JPMorgan Chase Bank, as trustee (the
"Guarantee Trustee"), for the benefit of the holders from time to time of the
Junior Subordinated Debt Securities.
The Trust Securities will be issued pursuant to the Amended and
Restated Trust Agreement of the Trust (the "Trust Agreement"), among PartnerRe
Finance, as Depositor, the administrative trustees named therein (the
"Administrative Trustees"), JPMorgan Chase Bank, as the initial property trustee
(the "Property Trustee"), Chase Manhattan Bank USA, N.A., as the Delaware
Trustee (the "Delaware Trustee" and, together with the Property Trustee and the
Administrative Trustees, the "Trustees"), and the holders from time to time of
the undivided beneficial ownership interests in the assets of the Trust.
The Guarantor, PartnerRe Finance and the Trust are sometimes
collectively referred to herein as the "PartnerRe Entities."
The Preferred Securities Guarantee, the Junior Subordinated Debt
Securities Guarantee Agreement and the Indenture, are sometimes collectively
referred to herein as the "Trust Preferred Documents."
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
S-3 (registration no. 333-72246), including a related prospectus, relating to
the registration of certain securities of the PartnerRe Entities, including the
Preferred Securities, the Preferred Securities Guarantee, the Junior
Subordinated Debt Securities and the Junior Subordinated Debt Securities
Guarantee (the "Shelf Securities"), to be sold from time to time by the
PartnerRe Entities. The registration statement, as amended at the time it became
effective, including information, if any, deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act is hereinafter referred to as the "Registration Statement," and
the prospectus included therein relating to the Shelf Securities at the time the
Registration Statement became effective, is hereinafter referred to as the
"Basic Prospectus." The Basic
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Prospectus, as supplemented by the prospectus supplement dated November 13, 2001
(the "Prospectus Supplement"), relating to the Preferred Securities, in the form
first used to confirm sales of the Preferred Securities is hereinafter referred
to as the "Prospectus." If the PartnerRe Entities have filed an abbreviated
registration statement pursuant to Rule 462(b) under the Securities Act (the
"Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement. Any reference to the term Registration Statement, the Basic
Prospectus, any preliminary form of prospectus previously filed with the
Commission pursuant to Rule 424 of the Securities Act or the Prospectus shall
include the documents incorporated therein by reference. The terms "supplement"
and "amendment" or "amend" as used in this Agreement 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 in the Prospectus.
1. Representations and Warranties of the PartnerRe Entities. Each of
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 S-3 under the
Securities Act. The Registration Statement has become effective; 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.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, 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, (ii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iii)
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, except that the representations and warranties set forth in
this paragraph 1(b) do not apply to statements or omissions in the
Registration Statement or the Prospectus made in reliance upon and in
conformity with information relating to any Underwriter
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furnished to any of the PartnerRe Entities in writing by such
Underwriter through you expressly for use therein. Each document filed
or to be filed pursuant to the Exchange Act, and incorporated by
reference in the Prospectus, did not contain or will not contain when
so filed 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, and complied or will comply when so
filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder. 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 the PartnerRe Entities, threatened
or contemplated by the Commission.
(c) The Guarantor has been duly organized, is validly existing
as a company in good standing (including as an exempted company) 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 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").
(d) Partner Reinsurance Company Ltd., a Bermuda company
("Partner Reinsurance"), PartnerRe Reinsurance Company of the U.S.
("PartnerRe U.S.") and PartnerRe S.A., a French societe anonyme (and,
collectively with Partner Reinsurance and PartnerRe U.S., the
"Subsidiaries"), are each wholly owned, directly or indirectly, by the
Guarantor, except in the case of PartnerRe S.A. for director's
qualifying shares, and are the only "significant subsidiaries" of the
Guarantor within the meaning of Rule 405 under the Securities Act. Each
of PartnerRe Finance and the Subsidiaries has been duly organized, is
validly existing as a company, corporation or other legal entity, as
the case may be, in good standing (including, in the case of Partner
Reinsurance, as an exempted company) 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
Registration Statement 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
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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 of each Subsidiary and
PartnerRe Finance have been duly authorized and are validly issued,
fully paid and non-assessable and are, except in the case of PartnerRe
S.A. for director's qualifying shares, owned directly or indirectly by
the Guarantor, free and clear of all security interests, liens,
encumbrances, equities or claims.
(e) The authorized capital stock of the Guarantor and
PartnerRe Finance conforms as to legal matters to the descriptions
thereof contained in the Prospectus.
(f) All of the outstanding shares of capital stock of the
Guarantor and PartnerRe Finance have been duly authorized and are
validly issued, fully paid and non-assessable, conform as to legal
matters to the descriptions thereof contained in the Prospectus and are
not and will not be subject to any preemptive or similar rights; all
the outstanding beneficial interests in the Trust have been duly
authorized and, on or prior to the Closing Date (as defined below),
will be validly issued, are fully paid and non-assessable and conform
to the descriptions thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by each of the PartnerRe Entities.
(h) The Preferred Securities have been duly authorized, and,
when Preferred Securities are issued and delivered pursuant to this
Agreement, such Preferred Securities will have been validly issued,
fully paid and nonassessable beneficial interests in the Trust entitled
to the benefits provided by the Trust Agreement, which will conform to
the description thereof contained in the Prospectus.
(i) The Preferred Securities have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance;
and the Preferred Securities have been registered under the Exchange
Act.
(j) Holders of the Preferred Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability as that extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware.
(k) The Common Securities have been duly authorized and, when
Common Securities are issued and delivered to PartnerRe Finance
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against payment therefor as described in the Prospectus, such Common
Securities will have been validly issued, fully paid and nonassesable
beneficial interests in the Trust entitled to the benefits provided by
the Trust Agreement; all Common Securities will be owned directly by
PartnerRe Finance, free and clear of all security interests, liens,
encumbrances, equity, or claims; and the issuance of such Common
Securities will not be subject to any preemptive rights.
(l) the Junior Subordinated Debt Securities have been duly
authorized, and, when issued and delivered pursuant to the Indenture,
will have been duly executed, authenticated, issued and delivered and
will constitute valid and binding obligations of PartnerRe Finance
entitled to the benefits provided by the Indenture and the Junior
Subordinated Debt Securities Guarantee; the Indenture has been duly
authorized, executed and delivered by PartnerRe Finance and constitutes
a valid and binding instrument, 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 will conform to the description thereof in the Prospectus.
(m) each of the Trust Preferred Documents has been duly
authorized and, when validly executed and delivered by the Guarantor,
will constitute a legal, valid and binding obligation 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 each of the Trust Preferred Documents will
conform to the descriptions thereof in the Prospectus.
(n) the Trust Agreement has been duly authorized by PartnerRe
Finance, as Depositor, and, when duly executed and delivered by
PartnerRe Finance, as Depositor, and the Administrative Trustees
(assuming due authorization, execution and delivery by the Property
Trustee and the Delaware Trustee), will constitute a legal, valid and
binding obligation of the Depositor and Trustees, enforceable against
the Depositor and Trustees 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,
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(regardless of whether enforcement is sought in a proceeding at law or
in equity); and the Trust Agreement will conform to the description
thereof contained in the Prospectus.
(o) each of the Trust Preferred Documents and the Trust
Agreement has been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act").
(p) the Trust has been duly created and is validly existing as
a statutory business trust in good standing under the Business Trust
Act of the State of Delaware (the "Delaware Trust Act") and is a
"grantor trust" for federal income tax purposes, with the trust power
and authority to own property and conduct its business as described in
the Prospectus, and has conducted and will conduct no business other
than the transactions contemplated by this Agreement as described in
the Prospectus; except for the Original Trust Agreement, dated October
2, 2001 (the "Original Trust Agreement"), the Trust is not a party to
or bound by any agreement or instrument and after the Trust executes
the Trust Agreement, the Trust will not be a party to or bound by any
agreement or instrument other than this Agreement, the Trust Agreement
and the other agreements entered into in connection with the
transactions contemplated hereby; the Trust has no liabilities or
obligations other than those arising out of the transactions
contemplated by this Agreement, the Original Trust Agreement and the
Trust Agreement; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature.
(q) The Trust derives no income from or connected with
services provided within the State of Delaware and has no assets,
activities (other than maintaining the Delaware Trustee and the filing
of documents with the Secretary of State of the State of Delaware) or
employees in the State of Delaware.
(r) None of the PartnerRe Entities nor any of the Subsidiaries
is (i) in violation of its certificate of incorporation, 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,
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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).
(s) Neither the issuance, sale and delivery of the Preferred
Securities nor the compliance by the Trust with all the provisions of
the Preferred Securities, the Trust Agreement, this Agreement, the
purchase of the Junior Subordinated Debt Securities by the Trust 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 Trust Agreement,
(iii) any bond, debenture, note or other evidence of indebtedness or
any agreement, indenture, lease or other instrument to which the Trust
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 Trust, 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 Trust 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).
(t) Neither the execution and delivery by the Guarantor of, or
the performance by it of its obligations under, this Agreement or the
Trust Preferred Documents, 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
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be bound or to 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).
(u) Neither the execution and delivery by PartnerRe Finance
of, or the performance by PartnerRe Finance of its obligations under,
this Agreement, the Trust Agreement, the Junior Subordinated Debt
Securities and the Indenture and the consummation of the transactions
hereby contemplated will (A) conflict with or contravene any provision
of (i) any applicable statute, law, regulation, ruling or filing, (ii)
the certificate of incorporation or by-laws of PartnerRe Finance of,
(iii) any bond, debenture, note or other evidence of indebtedness or
any agreement, indenture, lease or other instrument to which PartnerRe
Finance is a party or by which it is or may be bound or to which any of
its properties or assets is or may be subject, or (iv) any Order of any
Regulatory Authority that is applicable to PartnerRe Finance or any of
its 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 PartnerRe Finance pursuant to 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).
(v) 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 Trust Preferred Documents
or the Trust Agreement, except such as may be required (1) for
registrations and filings under the Securities Act, the Exchange Act or
the Trust Indenture Act, (2) under the Insurance Laws (as defined
below) of Bermuda and (3) under the securities or Blue Sky or insurance
securities laws of the various states in connection with the offer and
sale of the Preferred Securities, all of which have been or will be
effected on or prior to the Closing Date.
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(w) The consolidated financial statements of the Guarantor
(together with related schedules and notes) included in the
Registration Statement and 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
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; such financial statements and related schedules and
notes have been prepared in conformity with United States generally
accepted accounting principles applied on a consistent basis during the
periods involved.
(x) There has not occurred any material adverse change or any
development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business or
operations of the Guarantor and the Subsidiaries, taken as a whole,
from that set forth in the Registration Statement and the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(y) 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 Registration Statement or 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 Registration Statement or 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.
(z) 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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(aa) 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 Registration Statement 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 organization 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.
(bb) 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.
(cc) None of the PartnerRe Entities are, and after giving
effect to the offering and sale of the Preferred Securities and the
application of the proceeds thereof as described in the Prospectus,
none of the PartnerRe Entities will be, an "investment company" within
the meaning of the Investment Company act of 1940, as amended.
(dd) 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 Registration Statement 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 organization, 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
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jurisdiction where it is required to be so licensed or admitted to
conduct its business as described in the Registration Statement and the
Prospectus, except for where the failure to be so licensed or admitted
would not have a Material Adverse Effect.
(ee) None of the Underwriters or any subsequent purchasers of
the Preferred 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 Preferred Securities.
(ff) Any 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.
(gg) 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 to the effect set
forth in the Guarantor's Annual Report on Form 10-K for the year ended
December 31, 2000 under the caption "Business--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.
(hh) Deloitte & Touche, who reported on the consolidated
financial statements and supporting schedules of the Guarantor included
or to be included in the Registration Statement and the Prospectus (or
any amendment or supplement thereto), is an independent public
accountant with respect to the Guarantor as required by the Securities
Act.
(ii) The Guarantor maintains, and each of the Subsidiaries
maintain, a system of internal accounting controls 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
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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.
(jj) The Guarantor has duly, validly and irrevocably appointed
PartnerRe U.S. Corporation as its agent for the purposes described in
Section 12 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
Prospectus.
(kk) None of 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 Prospectus.
(ll) Consummation of the transactions contemplated by this
Agreement, including but not limited to any actions taken pursuant to
the indemnification and contribution provisions set forth herein, will
not constitute unlawful financial assistance under Bermuda law.
2. Agreements to Sell and Purchase. The Trust 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 Trust at $25 per Preferred Security (the "Purchase Price") the number of
Preferred Securities set forth in Schedule I hereto opposite the name of such
Underwriter.
The Guarantor hereby guarantees the timely performance by the Trust of
its obligations under this Agreement. As compensation to the Underwriters for
their commitments hereunder, the Guarantor hereby agrees to pay or cause to be
paid at the Closing Date to you for the accounts of the several Underwriters a
commission in the amount of $.7875 per Preferred Security (the "Underwriting
Commission").
Each of the PartnerRe Entities hereby agree that, without the prior
written consent of Morgan Stanley & Co. Incorporated 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 Preferred
Securities. The foregoing sentence shall not apply to the Preferred Securities
to be sold hereunder.
13
3. Terms of Public Offering. The Trust is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Preferred Securities as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Trust is
further advised by you that the Preferred Securities are to be offered to the
public initially at $25 per Share (the "Public Offering Price") plus accrued
dividends, if any, to the Closing Date and to certain dealers selected by you at
a price that represents a concession not in excess of $.50 per Preferred
Security under the Public Offering Price, and any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $.35 per Preferred
Security to any Underwriter or to certain other dealers.
4. Payment and Delivery. Payment for the Preferred Securities to be
sold by the Trust shall be made to the Trust in Federal or other funds
immediately available in New York City against delivery of the Preferred
Securities to you for the respective accounts of the several Underwriters at the
offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York
10017, at 9:00 a.m., New York City time, on November 21, 2001, or at such other
time on the same or such other date, not later than five 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."
The certificates, if any, for the Preferred Securities purchased by the
Underwriters shall be registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date. The certificates, if any, evidencing the Preferred Securities
shall be delivered 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 Preferred Securities to the Underwriters duly paid, against
payment of the Purchase Price and the Underwriting Commission with respect to
such Preferred Securities.
5. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters to purchase and pay for the Preferred 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 in relation to
the Preferred Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Securities Act
and in
14
accordance with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or suspending the
qualification of any of the Trust Preferred Documents or the Trust
Agreement 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 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 the direction of the possible change,
in the rating accorded any of the Guarantor's securities which
are rated as of the date of this Agreement by A.M. Best & Co.,
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 in the earnings, business or
operations of the Guarantor and its Subsidiaries, taken as a
whole, from that set forth in the 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 Preferred Securities on the terms and in the manner
contemplated in the 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 shall not have occurred any change, or any development
involving a prospective change in the condition, financial or
otherwise, or in the earnings, business or operations of the
Guarantor and its subsidiaries, taken as a whole,
15
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of
this Agreement);
(ii) a certificate, dated the Closing Date and signed
by an executive officer of PartnerRe Finance to the effect
that the representations and warranties of PartnerRe Finance
contained in this Agreement are true and correct as of the
Closing Date, and PartnerRe Finance 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
(iii) a certificate, dated the Closing Date and
signed by an Administrative Trustee of the Trust to the effect
that the representations and warranties of the Trust contained
in this Agreement are true and correct as of the Closing Date,
and that the Trust 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.
(d) The Underwriters shall have received on the Closing Date
an opinion of Willkie Farr & Gallagher, United States and French
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 that:
(i) each of PartnerRe U.S. and PartnerRe S.A. is a
company duly organized and validly existing in good standing
under the laws of its jurisdiction of organization and has
full power and authority to own or lease its property and to
conduct its business as described in the Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by each of PartnerRe Finance and the
Trust;
(iii) the Preferred Securities conform as to legal
matters to the description thereof contained in the
Prospectus;
(iv) the Junior Subordinated Debt Securities have
been duly authorized, and, when issued and delivered pursuant
to the Indenture, will have been duly executed, authenticated,
issued and delivered and will constitute valid and binding
obligations of PartnerRe Finance entitled to the benefits
provided by the Indenture; the Indenture has been duly
authorized, executed and delivered by PartnerRe Finance and is
duly qualified under the
16
Trust Indenture Act and constitutes a valid and binding
instrument, 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); the Indenture conforms to the description thereof in
the Prospectus;
(v) each of the Trust Preferred Documents is duly
qualified under the Trust Indenture Act and is a valid and
binding obligation 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 each of the Trust
Preferred Documents conforms to the descriptions thereof in
the Prospectus;
(vi) neither the issuance, sale or delivery of the
Preferred Securities by the Trust, nor the execution, delivery
and performance by any of the PartnerRe Entities of their
obligations under this Agreement, the Trust Securities, the
Trust Preferred Documents, the Junior Subordinated Debt
Securities or the Trust Agreement, nor the compliance by any
of the PartnerRe Entities with the provisions hereof or
thereof, as the case may be, nor the consummation by any of
the PartnerRe Entities of any of the transactions contemplated
hereby will (A) conflict with or contravene any provision of
(i) any applicable statute, law, regulation, ruling or filing
(assuming compliance by the Underwriters with all applicable
securities and Blue Sky laws) of any United States, New York
or French Regulatory Authority, except to the extent such
conflict or contravention would not have a Material Adverse
Effect, (ii) to the best of such counsel's knowledge any
agreement, indenture, lease or 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, except to the extent such
conflict
17
or contravention would not have a Material Adverse Effect, or
(iii) to the best of such counsel's knowledge, any Order of
any United States, New York or French Regulatory Authority
that is applicable to any of the PartnerRe Entities or the
Subsidiaries or any of their respective properties except to
the extent such conflict or contravention would not have a
Material Adverse Effect, or (B) to the best of such counsel's
knowledge, result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of any of
the PartnerRe Entities 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);
(vii) the Trust Agreement has been duly authorized,
duly executed by PartnerRe Finance and the Administrative
Trustees and delivered by PartnerRe Finance, and conforms as
to legal matters to the description thereof in the Prospectus;
(viii) no consent, approval, authorization or order
of, qualification with, or registration or filing with any
United States or New York Regulatory Authority, is required
for the performance by the PartnerRe Entities of their
obligations under this Agreement, except for such consent,
approvals, authorizations and orders (1) as have been obtained
and (2) as may be required under state securities or Blue Sky
laws of the various states in connection with the offer and
sale of the Securities;
(ix) the statements (A) in the Prospectus Supplement
under the captions "Description of the Preferred Securities,"
"Description of the Junior Subordinated Debt Securities,"
"Relationship Among the Preferred Securities, the Junior
Subordinated Debt Securities, the JSDS Guarantee and the
Preferred Securities Guarantee," "Description of the Junior
Subordinated Debt Securities Guarantee," and "Certain ERISA
Considerations," (B) in the Base Prospectus, as supplemented
by the Prospectus Supplement, under the captions "The Capital
Trust," "Description of the Debt Securities," "Description of
the Junior Subordinated Debt Securities issued to the Capital
Trust," "Description of Junior Subordinated Debt Securities
Guarantee," and "Description of the Trust Preferred Securities
Guarantee," and (C) in the Registration Statement in Item 15
with respect to PartnerRe Finance, in each case insofar as
such statements constitute summaries of documents referred to
therein, fairly summarize the matters referred to therein;
(x) the discussion of United States tax matters set
forth under the heading "United States Federal Income Tax
18
Consequences" in the Prospectus accurately reflects such
counsel's opinion as to such tax laws (subject to the
qualifications and assumptions set forth in such discussion);
(xi) to the best of such counsel's knowledge there
are no legal or governmental proceedings before or by any
U.S., New York or French Regulatory Authority, now pending,
contemplated or threatened to which any of the PartnerRe
Entities or the Subsidiaries is a party or to which any of
their respective properties is subject that is required to be
described in the Registration Statement or the Prospectus or
any statutes, regulations or orders that have been enacted,
adopted or issued by any U.S. New York or French Regulatory
Authority or Orders by a U.S., New York or French court of
competent jurisdiction that have been issued, or any
contracts, agreements, indentures, leases or other documents
or instruments, any of which are required to be described in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement or to any document
incorporated by reference therein that are not described or
filed as required.
(xii) each document incorporated by reference in the
Registration Statement and the Prospectus (except for
financial statements and the notes thereto and schedules and
other financial and statistical data included therein, as to
which such counsel need not express any opinion) complied as
to form when filed with the Commission in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder;
(xiii) to the extent that the laws of the State of
New York are applicable, the Guarantor has validly and
irrevocably submitted to the non-exclusive jurisdiction of any
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 or the Trust Preferred Documents, has validly and
irrevocably waived and agreed not to assert, to the fullest
extent, it may effectively do so under applicable law, 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 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;
19
(xiv) the Guarantor, as provided in the Registration
Statement, has duly 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
transactions covered by the Prospectus; and
(xv) none of the PartnerRe Entities are, and after
giving effect to the offering and sale of the Preferred
Securities and the application of the proceeds thereof as
described in the Prospectus will be, required to register as
an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
In addition, such counsel shall state that, although such counsel has
not undertaken to determine independently, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements in
the Registration Statement, except as stated above, such counsel has
participated in the preparation of the Registration Statement and the
Prospectus, including general review and discussion of the contents thereof and
such counsel (A) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules and other financial
and statistical data included therein as to which such counsel need not express
any opinion) comply as to form in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder, (B) has
no reason to believe that (except for financial statements and schedules and
other financial and statistical data as to which such counsel need not express
any belief) the Registration Statement and the Prospectus included therein at
the time the Registration Statement became effective contained any 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 not misleading and
(C) has no reason to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel need not
express any belief) the Prospectus contains any untrue statement of a material
fact or omits 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.
In rendering their opinion as aforesaid, counsel may, as to factual
matters, rely upon written certificates of officers of the Guarantor or
PartnerRe Finance or the Administrative Trustees of the Trust and, as to matters
of law, may rely upon the opinions of Appleby, Spurling & Kempe and/or Morris,
Nichols, Arsht & Tunnell referred to below and upon any other opinion or
opinions, each dated the Closing Date, of other counsel retained by any of the
PartnerRe Entities as to
20
laws of any jurisdiction other than the United States, France or the State of
New York, provided that (i) you are notified in advance of such counsel's
intention to rely on local counsel and each such counsel is acceptable to you,
(ii) such reliance is expressly authorized by each opinion so relied upon and a
copy of each such opinion is delivered to you and is, in form and substance
reasonably satisfactory to you and to counsel for the Underwriters, and (iii)
counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying on such local counsel opinion. Such
counsel may also make such assumptions as shall be reasonably satisfactory to
your counsel.
(e) The Underwriters shall have received on the Closing Date
an opinion of Appleby, Spurling & Kempe, 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 that:
(i) each of the Guarantor and Partner Reinsurance is
a company duly organized and validly existing in good standing
(including as an exempted company) under the laws of Bermuda,
has requisite power and authority and such Permits of any
Regulatory Authority in Bermuda (a "Bermuda Regulatory
Authority") necessary to own, lease and operate its property
and to conduct its business as described in the Registration
Statement and the Prospectus, which remain in full force and
effect, except to the extent that the failure to be in good
standing would not have a Material Adverse Effect;
(ii) the Guarantor has the power and authority to
enter into this Agreement and the Trust Preferred Documents;
the execution, delivery and performance of its obligations
under this Agreement and the Trust Preferred Documents by the
Guarantor have been duly and validly authorized by the
Guarantor; and each of this Agreement and the Trust Preferred
Documents has been duly executed and delivered by the
Guarantor;
(iii) the authorized shares of capital stock of the
Guarantor is as set forth under the caption "Capitalization"
in the Prospectus and conforms in all material respects as to
Bermuda legal matters to the description thereof contained in
the Prospectus; and the shares of capital stock of the
Guarantor have been duly authorized and validly issued, are
fully paid and non-assessable (meaning that no further sums
are required to be paid by the holders thereof in connection
with the issue of such shares) and all such shares of the
Subsidiaries are registered in the name of the Guarantor or a
21
wholly-owned subsidiary of the Guarantor, except in the case
of PartnerRe S.A. for director's qualifying shares; based
solely on a search of the Register of Charges maintained by
the Registrar of Companies pursuant to Sections 55 and 61 of
the Companies Act 1981 of Bermuda, as amended (the "Companies
Act"), there are no registered liens, encumbrances, equities
or claims in the Register of Charges in respect of the issued
shares of the Guarantor or Partner Reinsurance.
(iv) each of the Trust Preferred Documents has been
duly authorized, executed and delivered by the Guarantor;
(v) neither the execution, delivery and performance
by the Guarantor of its obligations under this Agreement or
the Trust Preferred Documents nor the compliance by the
Guarantor with the provisions hereof or thereof, as the case
may be, nor the consummation by the Guarantor of any of the
transactions contemplated hereby will (A) conflict with or
contravene any provision of (i) any applicable statute, law,
regulation or published ruling or Order of any Bermuda
Regulatory Authority in any material respect that is
applicable to the Guarantor or Partner Reinsurance or any of
their respective properties or (ii) the memorandum of
association, certificate of incorporation, bye-laws or other
organizational documents of the Guarantor or Partner
Reinsurance or (B) to such counsel's knowledge, based solely
on a search of the Register of Charges maintained by the
Registrar of Companies pursuant to Sections 55 and 61 of the
Companies Act, create or impose any lien, charge or
encumbrance upon any property or assets of either of the
Guarantor or Partner Reinsurance;
(vi) no consent, approval, authorization or order of,
qualification with, or registration or filing with any Bermuda
Regulatory Authority is required for the performance by the
Guarantor of its obligations under this Agreement or the Trust
Preferred Documents, which has not been obtained or effected;
(vii) Partner Reinsurance is duly registered as a
Class 4 insurer under the Bermuda Insurance Act 1978, as
amended, and any applicable rules and regulations thereunder
(the "Bermuda Insurance Act"), and is subject to regulation
and supervision in Bermuda and the Guarantor is not required
to be registered as an insurance company under the Bermuda
Insurance Act;
22
(viii) the consummation of the transactions
contemplated by the Agreement (including but not limited to
any actions taken pursuant to the indemnification and
contribution provisions contained herein) or the Trust
Preferred Documents will not subject to Section 39A(2A) of the
Companies Act, constitute unlawful financial assistance by the
Company or Partner Reinsurance under Bermuda law;
(ix) all statements made (A) in the Registration
Statement and Prospectus (including the documents incorporated
therein by reference) with respect to (1) the Preferred
Securities and the Trust Preferred Documents (insofar as such
statements relate to matters of Bermuda law), (2) the
memorandum of association, bye-laws or other organizational
documents of the Guarantor or Partner Reinsurance, (3)
statutes, regulations, rules, treaties and other laws of
Bermuda (including, but not limited to, statements made with
respect to insurance, regulatory and tax matters and to the
Bermuda Insurance Act), (4) enforcement of judgments in
Bermuda and (5) the statements related to Bermuda or the
documents governed by Bermuda law made under the heading
"Description of our Capital Shares", (B) in the Registration
Statement in Item 15 with respect to the Guarantor and (C) in
the descriptions of the common shares and the 8% Series A
Cumulative Preferred Shares of the Guarantor incorporated by
reference into the Prospectus, in each case insofar as such
statements constitute summaries of documents referred to
therein, fairly and accurately present the information set
forth therein and such counsel's opinion as to such matter;
(x) none of the Underwriters or any subsequent
purchasers of the Preferred Securities are subject to any
stamp duty, excise or similar tax imposed in Bermuda in
connection with the offering, sale or purchase of the
Preferred Securities;
(xi) the Guarantor and Partner Reinsurance have each
received from the Bermuda Minister of Finance an assurance of
tax exemption under The Exempted Undertakings Tax Protection
Act 1966 of Bermuda to the effect set forth in the Guarantor's
Annual Report on Form 10-K for the year ended December 31,
2000 under the caption "Business--Regulation--Taxation of the
Company and its Subsidiaries--Bermuda";
(xii) the Guarantor, as provided in the Registration
Statement, has duly and irrevocably appointed PartnerRe U.S.
23
Corporation as its agent for the purposes described in Section
12 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
transactions covered by the Prospectus and such appointment is
valid under Bermuda law;
(xiii) under the laws of Bermuda, the submission by
the Guarantor to the non-exclusive jurisdiction of any 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 or the Preferred Securities, its waiver and
agreement 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 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 and the
appointment of PartnerRe U.S. Corporation as its authorized
agent for the purposes described in Section 12 of this
Agreement are valid and binding; and service of process
effected in the manner set forth in Section 12 of this
Agreement will be effective under the laws of Bermuda to
confer personal jurisdiction over each of the Guarantor and
the Subsidiaries, assuming this to be the case under the laws
of the State of New York;
(xiv) the choice of the laws of New York as the
governing law of this Agreement is a valid and effective
choice of law; the several Underwriters would be permitted to
commence proceeding in a court of competent jurisdiction in
Bermuda based on or arising under this Agreement or the Trust
Preferred Documents; and the laws of New York would be
recognized and applied by such court as the laws governing
this Agreement;
(xv) in order to ensure the legality, validity,
enforceability or admissibility in evidence of the Prospectus,
this Agreement or the Trust Preferred Documents, it is not
necessary that any document be filed, recorded or enrolled
with any Bermuda Regulatory Authority or that any stamp
duties, registration or similar tax or charge be paid in
Bermuda;
(xvi) a final and conclusive judgment of a New York
State or a Federal Court against the Guarantor or any
Subsidiary based
24
upon this Agreement or the Trust Preferred Documents under
which a sum of money is payable (not being a sum payable in
respect of taxes or other charges of a like nature or in
respect of a fine or other penalty or in respect of multiple
damages as defined in the Protection of Trading Interest Act,
1981) may be the subject of enforcement proceedings in the
Supreme Court of Bermuda under the common law doctrine of
Obligation and by action for the debt evidenced by the foreign
Court's judgment. A final opinion as to the availability of
this remedy should be sought when the facts surrounding the
United States court's judgement are known, but, on general
principles such counsel would expect such proceedings to be
successful provided that:
(A) the court that gave the judgment was
competent to hear the action in accordance with
private international law principles as applied by
the courts in Bermuda (and, as at the date hereof, we
believe that a Court in Bermuda would determine that
any New York State or Federal Court sitting in the
City of New York is so competent); and
(B) the judgement is not contrary to public
policy in Bermuda and was not obtained by fraud or in
proceedings contrary to the rules of natural justice
of Bermuda. We do not believe that any provisions of
the Agreement or the Trust Preferred Documents would
be so contrary; and
(xvii) there are no legal or governmental proceedings
of any Bermuda Regulatory Authority pending or, to the best of
such counsel's knowledge, threatened against any of the
Guarantor or Partner Reinsurance or to which any of them or
any of their respective properties is subject, based solely on
(i) a certificate given by a director of the Company and (ii)
a search of the public records of the Company and Partner
Reinsurance, maintained by the Registrar of Companies and the
Registrar of the Supreme Court of Bermuda.
In rendering their opinion as aforesaid, Appleby,
Spurling & Kempe may, as to factual matters, rely upon written
certificates of officers of the Guarantor or the Subsidiaries
and, as to matters of law, may rely upon an opinion or
opinions, each dated the Closing Date, of other counsel
retained by them or the Guarantor as to laws of any
jurisdiction other than Bermuda, provided that (i)
25
you are notified in advance of such counsel's intention to
rely on local counsel and each such local counsel is
acceptable to you, (ii) such reliance is expressly authorized
by each opinion so relied upon and a copy of each such opinion
is delivered to you and is, in form and substance reasonably
satisfactory to you and to counsel for the Underwriters, and
(iii) Appleby, Spurling & Kempe shall state in their opinion
that they believe that they and the Underwriters are justified
in relying on such local counsel opinion. Such counsel may
also make such assumptions, and express their opinion to be
subject to such reservations, as shall be reasonably
satisfactory to your counsel. In their opinion, counsel shall
expressly authorize Willkie Farr & Gallagher and Davis Polk &
Wardwell to rely on said opinion.
(f) The Underwriters shall have received on the Closing Date
an opinion of Morris, Nichols, Arsht & Tunnell, special Delaware
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 that:
(i) the Trust is a duly created and validly existing
business trust in good standing under the Delaware Business
Trust Act, and all filings required under the laws of the
State of Delaware with respect to the creation and valid
existence of the Trust as a business trust have been made;
(ii) under the Delaware Business Trust Act and the Trust
Agreement, the Trust has the power and authority to own
property and conduct its business, all as described in the
Prospectus;
(iii) the Trust Agreement constitutes a valid and
legally binding obligation of PartnerRe Finance and the
Trustees, enforceable against PartnerRe Finance and the
Trustees, in accordance with its terms, except as such
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
laws of general application relating to or affecting the
enforcement of creditors' rights and remedies, as from time to
time in effect, (b) application of equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) and (c) considerations of
public policy or the effect of applicable law relating to
fiduciary duties;
26
(iv) under the Delaware Business Trust Act and the Trust
Agreement, the Trust has all requisite business trust power
and authority to (a) execute and deliver, and to perform its
obligations under, this Agreement, and (b) issue and perform
its obligations under the Preferred Securities and the Common
Securities;
(v) the execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its obligations
thereunder, have been duly authorized by all necessary action
on the part of the Trust;
(vi) the Preferred Securities have been duly authorized
by the Trust Agreement and are duly and validly issued and,
subject to the qualifications set forth herein, fully paid and
nonassessable beneficial interests in the Trust and are
entitled to the benefits provided by the Trust Agreement
subject to (a) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other laws of general
application relating to or affecting the enforcement of
creditors' rights and remedies, as from time to time in
effect, (b) application of equitable principles (regardless of
whether such enforceability is considered in a proceeding in
equity or at law) and (c) considerations of public policy or
the effect of applicable law relating to fiduciary duties; the
Securityholders, as beneficial owners of the Trust, will be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders
may be required to make payment or provide indemnity or
security as set forth in the Trust Agreement;
(vii) the Common Securities have been duly authorized by
the Trust Agreement for issuance and, when issued, delivered
and paid for in accordance with the terms of the Trust
Agreement, will be validly issued undivided beneficial
interests in the assets of the Trust;
(viii) under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Preferred Securities and
the Common Securities are not subject to preemptive rights;
(ix) the issuance and sale by the Trust of Trust
Securities, the execution, delivery and performance by the
Trust of this Agreement, the consummation by the Trust of the
transactions contemplated thereby and compliance by the Trust
with its
27
obligations thereunder do not (a) result in any violation of
the Trust Agreement or the Certificate of Trust or any
applicable Delaware law (statutory or decisional) or any rule
or regulation of any Delaware governmental agency or (b)
require the approval of any Delaware governmental agency;
(x) assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the
Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware, no authorization, approval, consent or
order of any Delaware governmental authority or agency is
required to be obtained by the Trust solely in connection with
the issuance and sale of the Trust Securities. In rendering
the opinion expressed in this paragraph (x), such counsel need
express no opinion concerning the securities laws of the State
of Delaware; and
(xi) assuming that the Trust derives no income from or
connected with services provided within the State of Delaware
and has no assets, activities (other than maintaining the
Delaware Trustee and the filing of documents with the
Secretary of State of the State of Delaware) or employees in
the State of Delaware, the Securityholders (other than those
holders of the Preferred Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Trust, and the Trust will
not be liable for any income tax imposed by the State of
Delaware.
(g) The Underwriters shall have received on the Closing Date
an opinion of Davis Polk & Wardwell, counsel for the Underwriters,
dated the Closing Date in form and substance satisfactory to the
Underwriters.
The opinions of Willkie Farr & Gallagher described in paragraph
5(d), Appleby, Spurling & Kempe described in paragraph 5(e) and Morris, Nichols,
Arsht & Tunnell described in paragraph 5(f) above shall be rendered to the
Underwriters at the request of the PartnerRe Entities and shall so state
therein.
(h) 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 Deloitte & Touche, independent chartered accountants,
containing statements and information of the type ordinarily
28
included in accountants' "comfort letters" to underwriters with respect to
the financial statement and certain financial information contained in the
Registration Statement and the Prospectus.
(i) The Preferred Securities shall have been approved for listing,
subject only to official notice of issuance, on the New York Stock
Exchange.
(j) 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 as originally filed with the
Commission 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
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
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 Preferred Securities are offered by
the several Underwriters and by all dealers to whom Preferred Securities
may be sold, in connection with the offering and sale of the Preferred
Securities.
(b) (i) Before amending or supplementing the Registration Statement
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
29
such Rule, and (ii) during the period mentioned in paragraph (c) 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, during such period after execution and delivery of this
Agreement as in the opinion of counsel for the Underwriters a prospectus
is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur or condition exist that in
the judgment of the PartnerRe Entities or in the opinion of counsel for
the Underwriters is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion or counsel for the Underwriters, it is necessary to amend or
supplement the Prospectus (or to file under the Exchange Act any document
which, upon filing, becomes a document incorporated therein by reference)
to comply with applicable law, forthwith to prepare and, subject to the
provisions of paragraph (b) above, 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
Preferred Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus (or such document) so that the statements in
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law.
(d) To endeavor to qualify the Preferred 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.
(e) 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);
(f) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or
30
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
Preferred 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 Prospectus and 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 Preferred Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the costs of producing this
Agreement, the Trust Preferred Documents, the Trust Agreement and any Blue
Sky memorandum in connection with the offer and sale of the Preferred
Securities under state securities laws and all expenses in connection with
the qualification of the Preferred Securities for offer and sale under
state securities laws as provided in Section 6(d) 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 Preferred Securities by the National Association of
Securities Dealers, Inc., (v) any fees charged by rating agencies for the
rating of the Securities, (vi) all costs and expenses included in the
listing of the Preferred Securities on any national securities exchange,
(vii) all fees and expenses in connection with the preparation and filing
of the registration statement on Form 8-A relating to the Preferred
Securities and all costs and expenses incident to listing the Preferred
Securities on the New York Stock Exchange, (viii) the cost of producing
certificates representing the Preferred Securities, (ix) the costs and
charges of any Trustee, Administrative Trustee, Delaware Trustee, Property
Trustee and any agent of any Trustee and any transfer agent, registrar or
depositary, (x) 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 Preferred 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 (xi) all
other costs and expenses incident to the performance of the obligations of
the PartnerRe Entities hereunder for
31
which provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 7(f) below and
the last paragraph of Section 9 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Preferred
Securities by them and any advertising expenses connected with any offers
they may make.
7. Indemnity and Contribution. (a) The PartnerRe Entities agree to,
jointly and severally, indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter 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 or any amendment thereof, any preliminary prospectus or
the Prospectus (as amended or supplemented if the PartnerRe Entities shall have
furnished any amendments or supplements thereto), 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 (in the case of any
preliminary prospectus or the Prospectus, in light of the circumstances under
which it was made), 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 any Underwriter
furnished to the PartnerRe Entities in writing by such Underwriter through you
expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Preferred Securities, or any person
controlling such Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the PartnerRe Entities shall have furnished any amendment or
supplement thereto) was not sent or given by or on behalf of such Underwriter to
such person, if required by law to have been so delivered, at or prior to the
written confirmation of the sale of the Preferred Securities sold by the Trust
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.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the PartnerRe Entities, the directors of the Guarantor
and PartnerRe Finance and the officers or representatives of the PartnerRe
Entities who sign the Registration Statement and each person, if any, who
controls each of the PartnerRe Entities within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
32
to the same extent as the foregoing indemnity from the PartnerRe Entities
to such Underwriter but only with reference to information relating to
such Underwriter furnished to the PartnerRe Entities in writing by such
Underwriter through you expressly for 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 paragraph (a) or (b) of this
Section 7, 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 proceeding in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in
writing by Morgan Stanley & Co. Incorporated, in the case of parties
indemnified pursuant to paragraph (a) of this Section 7, and by the
PartnerRe Entities, in the case of parties indemnified pursuant to
paragraph (b) of this Section 7. 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 an 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
33
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.
(d) To the extent the indemnification provided for in paragraph (a)
and (b) of this Section 7 is unavailable to any indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, 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 PartnerRe
Entities on the one hand and the Underwriters on the other hand from the
offering of the Preferred Securities 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 PartnerRe Entities on
the one hand and of the Underwriters 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 PartnerRe Entities on the one hand
and the Underwriters on the other hand in connection with the offering of
the Preferred Securities shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Preferred
Securities (before deducting expenses) received by the PartnerRe Entities
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the
aggregate Public Offering Price of the Preferred Securities. The relative
fault of the PartnerRe Entities on the one hand and the Underwriters 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 PartnerRe Entities on the one hand or by the
Underwriters on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant
34
to this Section 7 are several in proportion to the respective number of
Preferred Securities they have purchased hereunder, and not joint.
(e) The PartnerRe Entities and the Underwriters agree that it would
not be just or equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in
paragraph (d) of this Section 7. The amount paid or payable by an
indemnified party as the 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 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the
total price at which the Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter 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 this Section 7 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.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of the
PartnerRe Entities contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of the
PartnerRe Entities, their officers or directors or any person controlling
the PartnerRe Entities and (iii) acceptance of and payment for any of the
Preferred Securities.
8. Termination. This Agreement shall be subject to termination by notice
given by you to PartnerRe or PartnerRe Finance if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall 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., (ii) trading of any securities of the
Guarantor shall have been suspended on any exchange or in any over-the-counter
35
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities or in
Bermuda declared by Bermuda authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 8(a)(i) through 8(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Preferred Securities on the terms and in
the manner contemplated in the Prospectus.
9. 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 Preferred Securities that it has or they have agreed to
purchase hereunder on such date, and the aggregate number of Preferred
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate number of the
Preferred Securities to be purchased on such date, the other Underwriters shall
be obligated severally in the proportions that the number of Preferred
Securities set forth opposite their respective names in Schedule I bears to the
aggregate number of Preferred Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as you may
specify, to purchase the Preferred Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Preferred Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such number of Preferred
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Preferred
Securities and the aggregate number of Preferred Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Preferred Securities to be purchased, and arrangements satisfactory to you and
the PartnerRe Entities for the purchase of such Preferred Securities 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.
36
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.
10. 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.
11. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Judicial Proceedings. (a) The Guarantor expressly accepts and
irrevocably submits 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 or the Preferred Securities. To the fullest extent it
may effectively do so under applicable law, the Guarantor 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.
(b) The Guarantor 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 12(a) brought in
any such court shall be conclusive and binding upon the Guarantor, 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 the Guarantor is or may be subject) by a suit upon such judgment.
(c) The Guarantor irrevocably designates and appoints PartnerRe U.S.
Corporation as its authorized agent, upon whom process may be served in
any suit, action or proceeding of the nature referred to in Section 12(a)
by mailing a copy thereof by registered or certified mail, postage
prepaid, return receipt requested, to the agent at the address of the
Guarantor specified in Section 13. The Guarantor agrees that such service
(i) shall be deemed in every respect effective service of process upon it
in
37
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 the Guarantor. 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 12 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 Guarantor in the courts of any
jurisdiction or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction.
13. 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., 96 Pitts
Bay Road, Pembroke HM 08, Bermuda, Attention: Corporate Secretary; (ii) if to
PartnerRe Finance or the Trust at One Greenwich Plaza, Greenwich, Connecticut,
06830-6352, Attention Scott D. Moore; or (iii) if to you, as Representatives of
the several Underwriters, care of Morgan Stanley & Co. Incorporated, 1585
Broadway, New York, New York 10036, Attention: Manager, Corporate Finance
Division.
14. 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.
38
Very truly yours,
PARTNERRE CAPITAL TRUST I, as
Issuer
By: PARTNERRE FINANCE I INC., as
Depositor
By: /s/ Albert Benchimol
-------------------------------
Name: Albert Benchimol
Title: Chief Financial Officer and
Executive Vice President
PARTNERRE LTD., as Guarantor
By: /s/ Albert Benchimol
-------------------------------
Name: Albert Benchimol
Title: Chief Financial Officer and
Executive Vice President
PARTNERRE FINANCE I INC.
By: /s/ Albert Benchimol
-------------------------------
Name: Albert Benchimol
Title: Chief Financial Officer and
Executive Vice President
Accepted as of the date hereof.
MORGAN STANLEY & CO. INCORPORATED
FIRST UNION SECURITIES, INC.
SALOMON SMITH BARNEY INC.
UBS WARBURG LLC
Acting severally on behalf of itself and the several Underwriters named
in Schedule I hereto
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
-----------------------------
Name: Michael Fusco
Title: Executive Director
SCHEDULE I
Number of
Preferred Securities
Underwriter To Be Purchased
Morgan Stanley & Co. Incorporated......................................... 1,660,000
First Union Securities, Inc............................................... 1,660,000
Salomon Smith Barney Inc.................................................. 1,660,000
UBS Warburg LLC........................................................... 1,660,000
ABN AMRO Incorporated..................................................... 40,000
Bear, Stearns & Co. Inc................................................... 40,000
CIBC World Markets Corp................................................... 40,000
Credit Suisse First Boston Corporation.................................... 40,000
Dain Rauscher Incorporated................................................ 40,000
Deutsche Banc Alex. Brown Inc............................................. 40,000
A.G. Edwards & Sons, Inc.................................................. 40,000
Goldman, Sachs & Co....................................................... 40,000
H & R BLOCK Financial Advisors, Inc....................................... 40,000
J.P. Morgan Securities Inc................................................ 40,000
Keefe, Bruyette & Woods Inc............................................... 40,000
Legg Mason Wood Walker Incorporated....................................... 40,000
Lehman Brothers Inc....................................................... 40,000
Prudential Securities Incorporated........................................ 40,000
Quick & Riley, Inc........................................................ 40,000
Charles Schwab & Co., Inc................................................. 40,000
TD Waterhouse Investor Services, Inc...................................... 40,000
Number of
Preferred Securities
Underwriter To Be Purchased
Tucker Anthony Incorporated............................................... 40,000
U.S. Bancorp Piper Jaffray Inc............................................ 40,000
Wells Fargo Van Kasper, LLC............................................... 40,000
Advest Inc................................................................ 20,000
Banc of America Securities LLC............................................ 20,000
BB&T Capital Markets, a Division of Scott & Stringfellow 20,000
BNY Capital Markets, Inc.................................................. 20,000
C.L. King & Associates, Inc.............................................. 20,000
Cochran, Securities LLC................................................... 20,000
D.A. Davidson & Co........................................................ 20,000
Davenport & Company LLC................................................... 20,000
Fahnestock & Co., Inc..................................................... 20,000
Ferris, Baker Watts Inc................................................... 20,000
Fifth Third Securities, Inc............................................... 20,000
Friedman, Billings Ramsey & Co., Inc...................................... 20,000
Gibraltar Securities Co................................................... 20,000
Gruntal & Co., L.L.C...................................................... 20,000
HSBC Securities (USA) Inc................................................. 20,000
Janney Montgomery Scott LLC............................................... 20,000
J.J.B. Hilliard, W.L. Lyons, Inc.......................................... 20,000
McDonald Investments Inc., a KeyCorp Company............................ 20,000
McGinn, Smith & Co., Inc.................................................. 20,000
Mesirow Financial, Inc.................................................... 20,000
Parker/Hunter Incorporated................................................ 20,000
Pershing/ a Division of Donaldson, Lufkin & Jenrette...................... 20,000
Number of
Preferred Securities
Underwriter To Be Purchased
Raymond James & Associates, Inc........................................... 20,000
Robert W. Baird & Co. Incorporated........................................ 20,000
Sandler O'Neill & Partners, LP............................................ 20,000
Southwest Securities, Inc................................................. 20,000
Stifel, Nicolaus & Company Incorporated .................................. 20,000
William Blair & Co........................................................ 20,000
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Total................................................... 8,000,000
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