EXHIBIT
1.1
$500,000,000
PartnerRe
Finance B LLC
5.500%
Senior Notes due 2020
Guaranteed
by
PartnerRe
Ltd.
Underwriting
Agreement
March 10, 2010
CREDIT
SUISSE SECURITIES (USA) LLC
BANC OF
AMERICA SECURITIES LLC
BARCLAYS
CAPITAL INC.
as
Representatives of the Underwriters listed
in
Schedule I hereto
c/o CREDIT
SUISSE SECURITIES (USA) LLC
Eleven
Madison Avenue
New York,
New York 10010-3629
Ladies
and Gentlemen:
PartnerRe
Finance B LLC, a Delaware limited liability company (the “
Company
”), proposes to issue
and sell to the several Underwriters listed in
Schedule
I
hereto (the “
Underwriters
”), subject to the
terms and conditions stated herein, an aggregate of $500,000,000.00 of its
5.500% Senior Notes due 2020 (the “
Notes
”) pursuant to an
Indenture and First Supplemental Indenture, each to be dated as of the Closing
Date (together, the “
Indenture
”), to be entered
into among the Company, PartnerRe Ltd., a Bermuda company (the “
Guarantor
”), and The Bank of
New York Mellon, as Trustee (in such capacity, the “
Indenture
Trustee
”). The Notes will be fully and unconditionally
guaranteed on a senior unsecured basis by the Guarantor (the “
Guarantee
” and, together with
the Notes, the “
Securities
”) to the extent set
forth in a Debt Guarantee Agreement and the First Supplemental Debt Guarantee
Agreement, each to be dated as of the Closing Date (together, the “
Guarantee Agreement
”), to be
entered into between the Guarantor and The Bank of New York Mellon, as trustee
(in such capacity, the “
Guarantee
Trustee
”). Credit Suisse Securities (USA) LLC, Banc of America
Securities LLC and Barclays Capital Inc. shall act as the representatives (the
“
Representatives
”) of
the several Underwriters.
The
Guarantor and the Company are sometimes collectively referred to herein as the
“
PartnerRe
Entities
.”
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. 333-158531), including a
related prospectus, relating to the registration of certain securities of the
PartnerRe Entities, including the Securities (the “
Shelf Securities
”), to be sold
from time to time by the PartnerRe Entities. The registration
statement as amended to the date of this Agreement is hereinafter referred to as
the “
Registration
Statement
” (for purposes of this definition, information contained in a
form of prospectus or prospectus supplement that is deemed retroactively to be a
part of the Registration Statement pursuant to Rule 430B shall be considered to
be included in the Registration Statement as of the time specified in Rule
430B), and the related prospectus dated April 10, 2009 in the form first used to
confirm sales of Securities (or in the form first made available to the
Underwriters by the PartnerRe Entities to meet requests of purchasers pursuant
to Rule 173 under the Securities Act ) is hereinafter referred to as the “
Base
Prospectus
”. The Base Prospectus, as supplemented by the
prospectus supplement specifically relating to the Securities in the form first
used to confirm sales of the Securities (or in the form first made available to
the Underwriters by the PartnerRe Entities to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the
“
Prospectus
,” and the
term “
preliminary
prospectus
” means the Base Prospectus, as supplemented by the preliminary
prospectus supplement dated March 10, 2010.
For
purposes of this Agreement, “
free writing prospectus
” has
the meaning set forth in Rule 405 under the Securities Act and “
Time of Sale Prospectus
” means
the Base Prospectus and the preliminary prospectus, together with the free
writing prospectuses, if any, each substantially in the form of
Schedule
II
hereto, as of the Applicable Time of Sale (as defined
herein). As used herein, the terms “
Registration Statement
,”
“
Base Prospectus
,”
“
preliminary
prospectus
,” “
Time of
Sale Prospectus
” and “
Prospectus
” shall include the
documents, if any, incorporated by reference therein. The terms
“
supplement
,” “
amendment
” and “
amend
” as used in this
Agreement with respect to the Registration Statement, the Base Prospectus, the
Time of Sale Prospectus, the preliminary prospectus or any free writing
prospectus shall include all documents subsequently filed by any of the
PartnerRe Entities with the Commission pursuant to the Securities Exchange Act
of 1934, as amended (the “
Exchange Act
”), that are
deemed to be incorporated by reference therein.
1.
Representations and Warranties of
the PartnerRe Entities
. 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 is an “automatic shelf registration statement” as defined
under Rule 405 of the Securities Act
that has
been filed with the Commission not earlier than three years prior to the date
hereof; and no notice of objection of the Commission to the use of such
registration statement or any post-effective amendment thereto pursuant to Rule
401(g)(2) under the Securities Act has been received by the PartnerRe
Entities. 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) Each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder, (ii) the Registration Statement does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement, the Time of Sale Prospectus and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the Trust Indenture Act of 1939,
as amended (the “
Trust
Indenture Act
”), and the applicable rules and regulations of the
Commission thereunder, (iv) the Time of Sale Prospectus did not at March 10,
2010 at 4:30 p.m. EST (the “
Applicable Time of Sale
”),
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (v) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this paragraph do not apply to (A) statements or omissions in the
Registration Statement, the Time of Sale Prospectus or the Prospectus based upon
information relating to any Underwriter furnished to the Guarantor in writing by
such Underwriter through the Representatives expressly for use therein or (B)
that part of the Registration Statement that constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act. No order
preventing or suspending the use of any preliminary prospectus has been issued
by the Commission and no proceedings for that purpose shall have been instituted
or, to the knowledge of any of the PartnerRe Entities, threatened or
contemplated by the Commission.
(c)
Each of
the PartnerRe Entities is a well known seasoned issuer (as defined in Rule 405
under the Securities Act) and is not an “ineligible issuer” pursuant to Rules
164, 405 and 433 under the Securities Act. Any free writing
prospectus that the PartnerRe Entities are required
to file
pursuant to Rule 433(d) under the Securities Act has been, or will be, filed
with the Commission in accordance with the requirements of the Securities Act
and the applicable rules and regulations of the Commission
thereunder. Each free writing prospectus that the PartnerRe Entities
have filed, or are required to file, pursuant to Rule 433(d) under the
Securities Act complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Except for the free writing prospectuses,
if any, identified in
Schedule
II
hereto, and electronic road shows, if any, furnished to you before
first use, the PartnerRe Entities have not prepared, used or referred to, and
will not, without your prior consent, prepare, use or refer to, any free writing
prospectus.
(d)
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, the Time of Sale Prospectus
and the Prospectus and is duly registered, qualified and authorized to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership, leasing or operation of property requires such
registration, qualification or authorization, except to the extent that the
failure to be so registered, qualified or authorized or be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of the Guarantor and its
subsidiaries taken as a whole (a “
Material Adverse
Effect
”).
(e)
Partner
Reinsurance Company Ltd., a Bermuda company (“
Partner Reinsurance
”), Partner
Reinsurance Company of the U.S. (“
PartnerRe U.S.
”), Partner
Reinsurance Europe Limited, an Irish company (“
PartnerRe Europe
” and,
collectively with Partner Reinsurance and PartnerRe U.S., the “
PartnerRe Subsidiaries
”),
Paris Re S.A., a French company (“
PRSA
”), and Paris Re
Switzerland AG, a Swiss company (“
PRS
” and, collectively with
the PartnerRe Subsidiaries and PRSA, the “
Subsidiaries
”), are each
wholly owned, directly or indirectly, by the Guarantor, and are the only
“significant subsidiaries” of the Guarantor within the meaning of Rule 405 under
the Securities Act. Each of the Company and the Subsidiaries has been
duly organized, is validly existing as a limited liability company, corporation
or other legal entity, as the case may be, in good standing (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 Time of
Sale Prospectus and the Prospectus and is duly registered, qualified and
authorized to transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership, leasing or operation of
property requires such registration, qualification or
authorization,
except to
the extent that the failure to be so registered, qualified or authorized or be
in good standing would not have a Material Adverse Effect; and all of the issued
and outstanding shares of capital stock or limited liability company interests
of each Subsidiary and the Company have been duly authorized and are validly
issued, and with respect to capital stock are fully paid and non-assessable, and
are owned directly or indirectly by the Guarantor, free and clear of all
security interests, liens, encumbrances, equities or claims.
(f)
The
authorized capital stock or membership interests, as applicable, of the
Guarantor and the Company conforms as to legal matters to the descriptions
thereof contained in the Time of Sale Prospectus and the
Prospectus.
(g)
The
Guarantor and the Subsidiaries maintain disclosure controls and procedures (as
such term is defined in Rule 13a-15(e) under the Exchange Act) that comply with
the requirements of the Exchange Act; such disclosure controls and procedures
have been designed to ensure that the information required to be disclosed by
the Guarantor in reports filed under the Exchange Act is (i) recorded,
processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, and (ii) accumulated and communicated to
management, including the chief executive officer and chief financial officer,
as appropriate, to allow timely decisions regarding disclosure; and such
disclosure controls and procedures are effective.
(h)
This
Agreement has been duly authorized, executed and delivered by each of the
PartnerRe Entities.
(i)
The Notes
have been duly authorized, and, when issued, authenticated and delivered
pursuant to the Indenture, will have been duly executed, authenticated, issued
and delivered and will constitute valid and binding obligations of the Company,
entitled to the benefits provided by the Indenture and the Guarantee subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, (regardless
of whether enforcement is sought in a proceeding at law or in equity); the
Indenture has been duly authorized and when executed and delivered by the
Company will constitute 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 Guarantee
Agreement and the Indenture have been duly authorized and when executed and
delivered by the Guarantor will constitute 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 together with the
Indenture and Notes will conform to the description thereof in the Time of Sale
Prospectus and the Prospectus.
(j)
The
Indenture has been duly qualified under the Trust Indenture Act.
(k)
None of
the PartnerRe Entities nor any of the Subsidiaries is (i) in violation of its
certificate of incorporation, certificate of formation, operating agreement,
memorandum of association or bye-laws or other organizational documents, (ii) in
violation of any law, ordinance, administrative or governmental rule or
regulation applicable to any of them or any of their respective properties
(except where any such violation or violations individually or in the aggregate
would not have a Material Adverse Effect), (iii) in violation of any judgment,
injunction, restraining order, decree or order of any nature (collectively, any
“
Order
”) of any court,
tribunal, regulatory body, administrative agency or other governmental body,
commission, agency, or official, or any arbitrator or self-regulatory
organization (including, without limitation, any insurance regulatory agency or
body) (collectively, a “
Regulatory Authority
”) having
jurisdiction over any of them (except where any such violation or violations
individually or in the aggregate would not have a Material Adverse Effect), or
(iv) in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any contract, agreement, indenture, lease or
other instrument to which any of the PartnerRe Entities or the Subsidiaries is a
party or by which any of them is bound or to which any of their respective
properties or assets is subject, and no condition or state of facts exists
which, with the passage of time or the giving of notice or both, would
constitute such a default (except where any such default or defaults
individually or in the aggregate would not have a Material Adverse
Effect).
(l)
Neither
the issuance, sale and delivery of the Notes nor the compliance by the Company
with all the provisions of the Notes, the Indenture, this Agreement and the
consummation of the transactions contemplated hereby will (A) conflict with or
contravene any provision of (i) any applicable statute, law, regulation, ruling
or filing, (ii) the certificate of formation and operating agreement of the
Company, (iii) any bond, debenture, note or other evidence of indebtedness or
any agreement, indenture, lease or other instrument to which the Company is a
party or by which it is or may be bound or to which its properties or assets is
or may be subject, or (iv) any Order of any Regulatory Authority that is
applicable
to the
Company, except, with respect to the foregoing clauses (i), (iii), and (iv), to
the extent such conflict or contravention would not have a Material Adverse
Effect, or (B) result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to the terms of
any agreement or instrument to which it is a party or by which it is bound or to
which any of its property or assets is subject (except where any such lien,
charge or encumbrance would not have a Material Adverse Effect).
(m)
Neither
the execution and delivery by the Guarantor of, or the performance by it of its
obligations under, this Agreement, the Indenture, the Guarantee Agreement, nor
the consummation of the transactions contemplated hereby will (A) conflict with
or contravene any provision of (i) any applicable statute, law, regulation,
ruling or filing, (ii) the memorandum of association, certificate of
incorporation, bye-laws or other organizational documents of any of the
Guarantor or the Subsidiaries, (iii) any bond, debenture, note or other evidence
of indebtedness or any agreement, indenture, lease or other instrument to which
any of the Guarantor or the Subsidiaries is a party or by which any of them is
or may be bound or to which any of their respective properties or assets is or
may be subject, or (iv) any Order of any Regulatory Authority that is applicable
to any of the Guarantor or the Subsidiaries or any of their respective
properties, except, with respect to the foregoing clauses (i), (iii), and (iv),
to the extent such conflict or contravention would not have a Material Adverse
Effect, or (B) result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of any of the Guarantor or the
Subsidiaries pursuant to the terms of any agreement or instrument to which any
of them is a party or by which any of them is bound or to which any of the
property or assets of any of them is subject (except where any such lien, charge
or encumbrance would not have a Material Adverse Effect).
(n)
No
consent, approval, authorization or order of, qualification with, or
registration or filing with any Regulatory Authority applicable to the PartnerRe
Entities or any of their properties is required for the performance by the
PartnerRe Entities of their obligations under this Agreement, the Guarantee or
the Indenture, 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 Securities, all of which have been or will be effected
on or prior to the Closing Date.
(o)
The
consolidated financial statements of the Guarantor (together with related
schedules and notes) included in the Time of Sale Prospectus and the Prospectus
comply as to form in all material respects
with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder and present fairly 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.
(p)
The
consolidated financial statements of PARIS RE Holdings Limited (“
Paris Re
”) (together with
related schedules and notes) included in the Time of Sale Prospectus and the
Prospectus (i) 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 to the extent applicable to the inclusion of such financial
statements of Paris Re in the Time of Sale Prospectus and the Prospectus and
(ii) present fairly, in all material respects, the consolidated financial
position of Paris Re 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 International
Financial Reporting Standards as issued by the International Accounting Standard
Board applied on a consistent basis during the periods involved.
(q)
The pro
forma financial statements included
in the Time of Sale
Prospectus and the Prospectus include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, the pro forma adjustments reflect
the reasonable application of those adjustments to the historical financial
statement amounts in the pro forma financial statements included
in the Time of Sale
Prospectus and the Prospectus; the pro forma financial statements included
in the Time of Sale
Prospectus and the Prospectus comply as to form with the applicable accounting
requirements of Regulation S-X under the Securities Act; and the pro forma
adjustments have been reasonably applied to the historical amounts in the
compilation of those statements.
(r)
There has
not occurred any material adverse change or any development involving a
prospective material adverse change in the condition, financial or otherwise, or
on the earnings, business or operations of the Guarantor and the Subsidiaries,
taken as a whole, from that set forth in the Time of Sale Prospectus and the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement).
(s)
There are
no legal or governmental proceedings pending or, to the knowledge of any of the
PartnerRe Entities or the Subsidiaries,
threatened
to which any of them is a party or to which any of their respective properties
is subject that are required to be described in the Time of Sale Prospectus and
the Prospectus and are not so described or any statutes, regulations,
agreements, contracts, indentures, leases, or other instruments or documents
that are required to be described in the Time of Sale Prospectus and the
Prospectus or to be filed as exhibits to the Registration Statement or to any
documents incorporated by reference therein that are not described or filed as
required.
(t)
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.
(u)
Each of
the Guarantor and the Subsidiaries possesses such consents, authorizations,
approvals, orders, franchises, licenses, certificates (including certificates of
authority), or permits issued by any regulatory agencies or bodies
(collectively, “
Permits
”) of and from, and has
made all declarations and filings with, all Regulatory Authorities which are
necessary to conduct the business as described in the Time of Sale Prospectus
and the Prospectus, except where the failure to possess such Permits or to make
such declarations or filings would not have a Material Adverse Effect; all of
such Permits are in full force and effect, and neither the Guarantor nor the
Subsidiaries has received any notification from any Regulatory Authority, in the
United States, its jurisdiction of 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.
(v)
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.
(w)
None of
the PartnerRe Entities are, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Time of Sale Prospectus and the Prospectus, none of the PartnerRe Entities will
be, required to register as an “investment company” within the meaning of the
Investment Company act of 1940, as amended.
(x)
Each of
the Subsidiaries is duly registered as an insurer or reinsurer where it is
required to be so registered to conduct its business as described in the Time of
Sale Prospectus and the Prospectus (except where the failure to be so registered
would not have a Material Adverse Effect) and is subject to regulation and
supervision in its jurisdiction of 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 jurisdiction where it is required to be so
licensed or admitted to conduct its business as described in the Time of Sale
Prospectus and the Prospectus, except for where the failure to be so licensed or
admitted would not have a Material Adverse Effect.
(y)
None of
the Underwriters or any subsequent purchasers of the Securities (other than
purchasers resident in Bermuda for Bermuda exchange control purposes) is subject
to any stamp duty, excise or similar tax imposed in Bermuda in connection with
the offering, sale or purchase of the Securities.
(z)
Any
material tax returns required to be filed by either the Guarantor or any of the
Subsidiaries in any jurisdiction have been filed, and any material taxes,
including franchise taxes and similar fees and any withholding taxes, penalties
and interest, assessments and fees and other charges due or claimed to be due
from such entities have been paid, other than any of those being contested in
good faith and for which adequate reserves have been provided or any of those
currently payable without penalty or interest.
(aa)
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, 2009 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.
(bb)
Deloitte
& Touche, who reported on the consolidated financial statements and
supporting schedules of the Guarantor included in the Time of Sale Prospectus
and the Prospectus (or any amendment or supplement thereto), is an independent
registered public accounting firm with respect to the Guarantor as required by
the Securities Act.
(cc)
Mazars,
who reported on the consolidated financial statements and supporting schedules
of Paris Re included in the Time of Sale Prospectus and the Prospectus (or any
amendment or supplement thereto), is an independent registered public accounting
firm with respect to the Guarantor as required by the Securities
Act.
(dd)
The
Guarantor maintains, and each of the PartnerRe Subsidiaries maintain, a system
of internal control over financial reporting (as such term is defined in Rule
13a-15(f) of the Exchange Act) that complies with the requirements of the
Exchange Act and sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with United States generally accepted
accounting principles and with statutory accounting principles, as the case may
be, and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. Since the date of the latest audited
financial statements included or incorporated by reference in the Time of Sale
Prospectus and the Prospectus, there has been no change in the Guarantor’s and
the PartnerRe Subsidiaries’ internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, the
Guarantor’s and each of the PartnerRe Subsidiaries’ internal control over
financial reporting.
(ee)
The
Guarantor has duly, validly and irrevocably appointed PartnerRe U.S. Corporation
as its agent for the purposes described in Section 13 of this Agreement and to
receive service of process in actions against it arising out of or in connection
with violations of the U.S. Federal securities laws in any Federal court or
state court in the United States relating to the transactions covered by the
Time of Sale Prospectus and the Prospectus.
(ff)
Neither
the Guarantor nor the Subsidiaries or any employee or agent thereof has made any
payment of funds or received or retained
any funds
in violation of any law, rule or regulation, which payment, receipt or retention
of funds is of a character required to be disclosed in the Time of Sale
Prospectus or the Prospectus, except where such payment, receipt or retention of
funds would not have a Material Adverse Effect.
(gg)
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.
(hh)
The
statements set forth in the Time of Sale Prospectus and the Prospectus under the
captions “Description of the Notes and the Guarantee”, “Description of the Debt
Securities” and “Description of the Debt Securities Guarantees” insofar as they
purport to constitute a summary of the terms of the Securities, and under the
caption “Material U.S. Federal Income Tax Consequences”, insofar as they purport
to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair.
(ii)
None of the Guarantor, any of its
subsidiaries or, to the knowledge of the Guarantor, any director, officer,
agent, employee or other person acting on behalf of the Guarantor or any of its
subsidiaries has (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expense relating to political activity;
(ii) made any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; or (iii) violated or is in
violation of any provision of the Foreign Corrupt Practices Act of
1977.
(jj)
The operations of the Guarantor and its
subsidiaries are and have been conducted at all times in material compliance
with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions where the Guarantor and its
subsidiaries conduct business, the rules and regulations thereunder and any
related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “
Money Laundering
Laws
”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Guarantor or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the
Guarantor, threatened.
(kk)
None of the Guarantor, any of its
subsidiaries or, to the knowledge of the Guarantor, any director, officer,
agent, employee or affiliate of the Guarantor or any of its subsidiaries is
currently subject
to
any U.S. sanctions
administered
by the Office of Foreign Assets Control
of the U.S. Department of the Treasury (“
OFAC
”); and the Company
will not, directly or indirectly, use
the proceeds of the offering of the Notes hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner
or other person or entity, for the purpose of financing the activities of any
person
currently subject to
any U.S. sanctions administered by OFAC.
2.
Agreements to Sell and
Purchase
. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
hereby agrees, severally and not jointly, to purchase from the Company at
99.235% of the principal amount of the Notes (the “
Purchase Price
”) set forth in
Schedule
I
hereto opposite the name of such Underwriter.
Each of
the PartnerRe Entities hereby agree that, without the prior written consent of
the Representatives on behalf of the Underwriters, it will not, during the
period beginning on the date hereof and continuing to and including the Closing
Date, offer, sell, contract to sell or otherwise dispose of any securities
substantially similar to the Securities. The foregoing sentence shall
not apply to the Securities to be sold hereunder.
3.
Terms of Public
Offering
. The Company is advised by you that the Underwriters
propose to make a public offering of their respective portions of the Securities
as soon after this Agreement has become effective as in your judgment is
advisable. The Company is further advised by you that the Securities
are to be offered to the public initially at 99.885% of the principal amount of
the Notes (the “
Public Offering
Price
”) plus accrued interest, if any, to the Closing Date and to certain
dealers selected by you at a price that represents a concession not in excess of
0.400% of the principal amount of the Notes under the Public Offering Price, and
any Underwriter may allow, and such dealers may reallow, a concession, not in
excess of 0.250% of the principal amount of the Notes to any Underwriter or to
certain other dealers.
4.
Payment and
Delivery
. Payment for the Securities to be sold by the Company
shall be made to the Company in Federal or other funds immediately available in
New York City against delivery of the Securities to you for the respective
accounts of the several Underwriters at the offices of Davis Polk & Wardwell
LLP, 450 Lexington Avenue, New York, New York 10017, at 9:00 a.m., New York City
time, on March 15, 2010, or at such other time on the same or such other date,
not later than three business days after the date of this Agreement as shall be
designated in writing by you. The time and date of such payment are
hereinafter referred to as the “
Closing Date
.”
The
Company will deliver to you on the Closing Date, for the respective accounts of
the several Underwriters, with any transfer taxes payable in connection with the
transfer of the Securities to the Underwriters duly paid,
against
payment of the Purchase Price, the Securities in the form of one or more
permanent global certificates (the “
Global Securities
”),
registered in the name of Cede & Co., as nominee for the Depository Trust
Company (“
DTC
”).
5.
Conditions to the Underwriters’
Obligations
. The several obligations of the Underwriters to
purchase and pay for the Securities on the Closing Date are subject, in the
discretion of the Representatives, to the condition that all representations and
warranties and other statements of the PartnerRe Entities in this Agreement are,
at and as of the Closing Date, true and correct, the condition that the
PartnerRe Entities shall have performed all of their obligations hereunder
theretofore to be performed, and to the following conditions:
(a)
The
Prospectus, as amended or supplemented and each issuer free writing prospectus
(as defined in Rule 433 of the Securities Act) (an “
Issuer Free Writing
Prospectus
”) relating to the Securities shall have been filed with the
Commission within the applicable time periods prescribed for such filing by the
rules and regulations under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement or suspending the qualification of
Indenture shall have been instituted or shall be pending or, to the knowledge of
any of the PartnerRe Entities, shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have been
complied with to the reasonable satisfaction of the Underwriters.
(b)
Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i)
there
shall not have occurred a downgrade of more than one notch from the rating as of
the date hereof, nor shall any notice have been given of any intended or
potential downgrading of more than one notch from the rating as of the date
hereof, accorded the Guarantor’s securities which are rated as of the date of
this Agreement by A.M. Best & Co., Standard & Poor’s Rating Services,
Moody’s Investor Services, Inc. or Fitch Inc.; and
(ii)
there
shall not have occurred any change, or any development involving a prospective
change, in the condition, financial or otherwise, or on the earnings, business
or operations of the Guarantor and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.
(c)
The
Underwriters shall have received on the Closing Date:
(i)
a
certificate, dated the Closing Date and signed by an executive officer of the
Guarantor, to the effect set forth in Section 5(b)(i) above and to the effect
that (A) the representations and warranties of the Guarantor contained in this
Agreement are true and correct as of the Closing Date and that the Guarantor has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date; and
(B) there shall not have occurred any material adverse change, or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or on the earnings, business or operations of the
Guarantor and its subsidiaries, taken as a whole, from that set forth in the
Time of Sale Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement); and
(ii)
a
certificate, dated the Closing Date and signed by an executive officer of the
Company to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date, and the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date.
(d)
The
Underwriters shall have received on the Closing Date an opinion and letter of
Davis Polk & Wardwell LLP, United States counsel for the PartnerRe Entities,
dated the Closing Date and addressed to you, as Representatives of the
Underwriters in form and substance reasonably satisfactory to counsel for the
Underwriters, to the effect set forth on
Exhibits
A and A-1
.
(e)
The
Underwriters shall have received on the Closing Date an opinion of Jean-Paul
Dyer, Associate General Counsel to the PartnerRe Entities, dated the Closing
Date, and addressed to you, as Representatives of the Underwriters, in form and
substance reasonably satisfactory to counsel for the Underwriters, to the effect
set forth in
Exhibit
B
.
(f)
The
Underwriters shall have received on the Closing Date an opinion of Willkie Farr
& Gallagher LLP, counsel for the Underwriters, dated the Closing Date in
form and substance satisfactory to the Underwriters.
The
opinions described in paragraphs 5(d) - 5(e) above shall be rendered to the
Underwriters at the request of the PartnerRe Entities and shall so state
therein.
(g)
The
Underwriters shall have received, on each of the date hereof and on the Closing
Date, a letter dated the date hereof or the
Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from (i) Deloitte & Touche and (ii) Mazars, independent
chartered accountants, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to the financial statement and certain financial information contained
in or incorporated by reference into the Time of Sale Prospectus and the
Prospectus.
(h)
The
PartnerRe Entities shall have furnished or caused to be furnished to you such
further certificates and documents as you shall have reasonably
requested.
6.
Covenants of the PartnerRe
Entities
. In further consideration of the agreements of the
Underwriters herein contained, each of the PartnerRe Entities jointly and
severally covenants with each Underwriter as follows:
(a)
To
furnish to you, upon request, without charge, five conformed copies of the
Registration Statement and of each amendment thereto, (including financial
statements, all exhibits thereto and documents incorporated therein by reference
and exhibits thereto) and for delivery to each other Underwriter a conformed
copy of the Registration Statement (without exhibits thereto but including
documents incorporated therein by reference) and to furnish to you in New York
City and to each Underwriter and dealer, without charge, prior to 10:00 A.M. New
York City time on the business day next succeeding the date of this Agreement
and from time to time as expeditiously as possible during the period mentioned
in paragraph (c) below, as many copies of the Time of Sale Prospectus,
Prospectus, any documents incorporated therein by reference and exhibits
thereto, and any supplements and amendments thereto or to the Registration
Statement as originally filed and of each amendment thereto, as you may
reasonably request. The PartnerRe Entities consent to the use of the
Time of Sale Prospectus and the Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the Securities Act and with the
securities or Blue Sky laws of the jurisdictions in which the Securities are
offered by the several Underwriters and by all dealers to whom Securities may be
sold, in connection with the offering and sale of the Securities.
(b)
(i)
Before amending or supplementing the Registration Statement, Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities Act
any prospectus required to be filed pursuant to such Rule, and (ii) during the
period mentioned in paragraph (c) or (d) below not to file any information,
documents or reports pursuant to the Exchange Act that upon filing becomes a
document incorporated by
reference
in the Registration Statement, without delivering a copy of such information,
documents or reports to you, as Representatives of the Underwriters, prior to or
concurrently with such filing.
(c)
If the
Time of Sale Prospectus is being used to solicit offers to buy the Securities at
a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Time of Sale Prospectus in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if any event shall occur or condition exist as a result of which,
in the opinion of counsel for the Underwriters, it is necessary to amend or
supplement the Time of Sale Prospectus to comply with applicable law, forthwith
to prepare, file with the Commission and furnish, at its own expense, to the
Underwriters and to any dealer upon request, either amendments or supplements to
the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the
circumstances when delivered to a prospective purchaser, be misleading or so
that the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable
law.
(d)
If,
during such period after the first date of the public offering of the Securities
as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
delivered to a purchaser, not misleading, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose names
and addresses you will furnish to the PartnerRe Entities) to which Securities
may have been sold by the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus (or in lieu thereof the notice referred to in
Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading
or so that the Prospectus, as amended or supplemented, will comply with
law.
(e)
To
endeavor to qualify the Securities for offer and sale by the several
Underwriters and by dealers under the securities, or Blue Sky laws of such
jurisdictions as you shall reasonably request.
(f)
In the
case of the Guarantor, to make generally available to its securityholders as
soon as practicable, but in any event not later than fifteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Guarantor and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including at the option of the
Guarantor, Rule 158).
(g)
Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the PartnerRe Entities’ (including local and
special counsel) and accountants in connection with the registration and
delivery of the Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and any amendments and
supplements to any of the foregoing, including all printing or reproduction
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities herein above specified, (ii) all
costs and expenses related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
costs of producing this Agreement, the Indenture, the Guarantee Agreement and
any Blue Sky memorandum in connection with the offer and sale of the Securities
under state securities laws and all expenses in connection with the
qualification of the Securities for offer and sale under state securities laws
as provided in Section 6(e) hereof, including filing fees and the reasonable
fees, expenses and disbursements of counsel for the Underwriters in connection
with the Blue Sky memoranda and such qualification, (iv) any filing fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Securities by the Financial
Industry Regulatory Authority, Inc., (v) any fees charged by rating agencies for
the rating of the Securities, (vi) all costs and expenses included in any
listing of the Securities on any national securities exchange, (vii) all fees
and expenses in connection with the preparation and filing of the registration
statement on Form 8-A relating to the Securities and all costs and expenses
incident to any listing of the Securities on the New York Stock Exchange, (viii)
the cost of producing certificates representing the 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 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 which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 8 below and the last
paragraph of Section 10 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
(h)
To
prepare a final term sheet, containing solely a description of the Securities,
substantially in the form of
Schedule
II
to this Agreement and approved by the Representatives, and to file
such term sheet pursuant to Rule 433(d) under the Act within the time period
prescribed by such rule.
7.
Covenants of the
Underwriters
. Each Underwriter hereby represents and agrees
that:
(a)
it has
not and will not distribute any free writing prospectus in a manner reasonably
designed to lead to its broad unrestricted dissemination, and it will not
otherwise be required to file any free writing prospectus with the Commission,
in accordance with Rule 433 under the Securities Act, as a result of any action
taken or caused to be taken by such Underwriter, unless such action is consented
to in advance by the Guarantor;
(b)
it has
not and will not, without the prior written consent of the Guarantor, use any
free writing prospectus that contains the final terms of the Securities unless
such terms have previously been included in a free writing prospectus filed with
the Commission;
provided
that Underwriters
may use a term sheet substantially in the form of
Schedule
II
hereto without the consent of the Company; and
provided further
that any
Underwriter using such term sheet shall notify the Guarantor, and provide a copy
of such term sheet to the Guarantor, prior to, or substantially concurrently
with, the first use of such term sheet;
(c)
it has
not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the
Securities Act (which term includes use of
any
written information furnished to the Commission by the PartnerRe Entities and
not incorporated by reference into the Registration Statement and any press
release issued by the PartnerRe Entities) other than (i) one or more term sheets
relating to the Securities which are not Issuer Free Writing Prospectuses and
which contain preliminary terms of the Securities and related customary
information not inconsistent with the final term sheet filed by the PartnerRe
Entities pursuant to Section 6(h) hereof, (ii) any issuer free writing
prospectus listed on
Schedule
II
or prepared pursuant to Section 6(h) above, or (iii) any free writing
prospectus prepared by such Underwriter and approved by the PartnerRe Entities
in advance in writing (each such free writing prospectus referred to in clauses
(i) or (iii) an “
Underwriter
Free Writing Prospectus
”); and
(d)
any
Underwriter Free Writing Prospectus used or referred to by it, complied or will
comply in all material respects with the Securities Act.
8.
Indemnity and
Contribution
. (a) The PartnerRe Entities agree to, jointly and
severally, indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Securities Act or the Exchange
Act against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Securities
Act, the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Securities at the time it
became effective or in any amendment thereof, in any preliminary prospectus, the
Time of Sale Prospectus, any Issuer Free Writing Prospectus, any PartnerRe
Entity information that the PartnerRe Entities have filed or are required to
file, pursuant to Rule 433(d) of the Securities Act or in the Prospectus, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action;
provided
,
however
, that the PartnerRe
Entities will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
any PartnerRe Entity by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the PartnerRe Entities may
otherwise have.
(b)
Each
Underwriter severally and not jointly agrees to indemnify and hold harmless the
PartnerRe Entities, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls each of the PartnerRe
Entities within the meaning of either the Securities Act or the Exchange Act, to
the same extent as the foregoing indemnity from the PartnerRe Entities to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the PartnerRe Entities by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The PartnerRe Entities acknowledge that the
statements set forth under the third paragraph under “Underwriting,” the third
sentence of the paragraph under “Underwriting—New Issue of Notes” and each
paragraph under “Underwriting—Price Stabilization and Short Positions” and
“Underwriting—Electronic Distributions” in the Time of Sale Prospectus and the
Prospectus, constitute the only information furnished in writing by or on behalf
of the several Underwriters for inclusion in the Registration Statement, any
preliminary prospectus or the Prospectus.
(c)
Promptly
after receipt by an indemnified party under this Section 8 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure materially prejudices
substantial rights or defenses of the indemnifying party and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided
,
however
, that such counsel
shall be reasonably satisfactory to the indemnified
party. Notwithstanding the indemnifying party’s election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d)
In the
event that the indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, the PartnerRe Entities and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively “
Losses
”) to which the
PartnerRe Entities and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
PartnerRe Entities on the one hand and by the Underwriters on the other from the
offering of the Securities;
provided
,
however
, that in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities ) be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the PartnerRe Entities and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the PartnerRe Entities on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the PartnerRe Entities shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by them, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
PartnerRe Entities on the one hand or the Underwriters on the other, the intent
of the parties and their relative
knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The PartnerRe Entities and the Underwriters
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8, each person who controls an Underwriter within the meaning of
either the Securities Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls each of the PartnerRe Entities
within the meaning of either the Securities Act or the Exchange Act, each
officer of the PartnerRe Entities who shall have signed the Registration
Statement and each director of the PartnerRe Entities shall have the same rights
to contribution as the PartnerRe Entities, subject in each case to the
applicable terms and conditions of this paragraph 8(d).
9.
Termination
. This
Agreement shall be subject to termination in the absolute discretion of the
Representatives, by notice given to the Guarantor or the Company prior to
delivery of and payment for the Securities, if at any time prior to such time
(a) (i) trading of any securities of the Guarantor shall have been suspended by
the Commission or the New York Stock Exchange, or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities, (iii) a material disruption in securities settlement, payment or
clearance services in the United States shall have occurred, or (iv) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war, or other calamity or crisis, and
(b) in the case of any of the events specified in clause 9(a)(i) or 9(a)(iv),
such event makes it, in the sole judgment of the Representatives, impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Time of Sale Prospectus or the Prospectus.
10.
Effectiveness; Defaulting
Underwriters
. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
If, on
the Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Notes that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of Notes to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
principal amount of Notes set forth opposite their respective names in
Schedule
I
bears to
the aggregate principal amount of Notes set forth opposite the names of all such
non-defaulting, or in such other proportions as you may specify, to purchase the
Notes which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date;
provided
that in no event
shall the principal amount of Notes that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 10 by an amount
in excess of one-ninth of such principal amounts of Notes without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Notes and the aggregate
principal amount of Notes with respect to which such default occurs is more than
one-tenth of the aggregate principal amount of Notes to be purchased, and
arrangements satisfactory to you and the PartnerRe Entities for the purchase of
such Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
PartnerRe Entities. In any such case either you or the PartnerRe
Entities shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this
Agreement shall be terminated by the Underwriters, or any of them, because of
any failure or refusal on the part of the PartnerRe Entities to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the PartnerRe Entities shall be unable to perform their obligations under
this Agreement, the PartnerRe Entities will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
11.
Counterparts
. This Agreement
may be signed in two or more counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
12.
Applicable
Law
. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13.
Judicial Proceedings
. (a) The
PartnerRe Entities expressly accept and irrevocably submit to the non-exclusive
jurisdiction of the United States Federal or New York State court sitting in the
Borough of Manhattan, The City of New York, New York, over any suit, action or
proceeding arising out of or relating to this Agreement, the Time of Sale
Prospectus, the Prospectus, the Indenture or the Securities. To the
fullest extent it may effectively do so under applicable law, each PartnerRe
Entity irrevocably waives and agrees not to assert, by way of motion, as a
defense or otherwise, any claim that it is not subject to the jurisdiction of
any such court, any objection that it may now or hereafter have to
the
laying of the venue of any such suit, action or proceeding brought in any such
court and any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
(b)
Each
PartnerRe Entity agrees, to the fullest extent that it may effectively do so
under applicable law, that a judgment in any suit, action or proceeding of the
nature referred to in Section 13(a) brought in any such court shall be
conclusive and binding upon such PartnerRe Entity, subject to rights of appeal
and may be enforced in the courts of the United States of America or the State
of New York (or any other court the jurisdiction to which such PartnerRe Entity
is or may be subject) by a suit upon such judgment.
(c)
Each
PartnerRe Entity irrevocably designates and appoints PartnerRe U.S. Corporation
as its authorized agent, upon whom process may be served in any suit, action or
proceeding of the nature referred to in Section 13(a) by mailing a copy thereof
by registered or certified mail, postage prepaid, return receipt requested, to
the agent at the address of the Guarantor specified in Section
14. Each PartnerRe Entity agrees that such service (i) shall be
deemed in every respect effective service of process upon it in every suit,
action or proceeding and (ii) shall, to the fullest extent permitted by law, be
taken and held to be valid personal service upon and personal delivery to such
PartnerRe Entity. Notices hereunder shall be conclusively presumed
received as evidenced by a delivery receipt furnished by the United States
Postal Service or any commercial delivery service.
(d)
Nothing
in this Section 13 shall affect the right of any Underwriter to serve process in
any manner permitted by law, or limit any right to bring proceedings against the
PartnerRe Entities in the courts of any jurisdiction or to enforce in any lawful
manner a judgment obtained in one jurisdiction in any other
jurisdiction.
14.
Notice
. Except as otherwise
provided herein, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Guarantor, at the office of
the Guarantor at PartnerRe Ltd., 90 Pitts Bay Road, Pembroke HM 08, Bermuda,
Attention: Corporate Secretary; (ii) if to the Company at One Greenwich Plaza,
Greenwich, Connecticut, 06830-6352, Attention Thomas Forsyth; or (iii) if to
you, as Representatives of the several Underwriters, care of Credit Suisse
Securities (USA) LLC, 11 Madison Avenue, New York, NY 10010, Attn: IBD Legal,
fax: (212) 325-4296.
15.
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.
16.
Survival
. The
provisions of Sections 6(g) and 8 hereof shall survive the termination or
cancellation of this Agreement.
17.
No Fiduciary
Duty
. The PartnerRe Entities hereby acknowledge that (a) the
Representatives are acting as principal and not as an agent or fiduciary of the
PartnerRe Entities and (b) their engagement of the Representatives in connection
with the transactions contemplated hereby is as independent contractors and not
in any other capacity. Furthermore, the PartnerRe Entities agree that they are
solely responsible for making their own judgments in connection with the
transactions contemplated hereby (irrespective of whether the Representatives
have advised or are currently advising the PartnerRe Entities on related or
other matters).
|
PARTNERRE
FINANCE B LLC, as Issuer
By:
|
|||
|
By:
|
/s/ Thomas L. Forsyth | ||
|
Name:
|
Thomas L. Forsyth | ||
|
Title:
|
Executive Vice President | ||
|
PARTNERRE
LTD., as Guarantor
|
|||
|
By:
|
/s/ William Babcork | ||
|
Name:
|
William Babcork | ||
|
Title:
|
Group Finance Director | ||
Accepted
as of the date hereof.
CREDIT
SUISSE SECURITIES (USA) LLC
BANC OF
AMERICA SECURITIES LLC
BARCLAYS
CAPITAL INC.
Acting
severally on behalf of itself and the several Underwriters named in Schedule I
hereto
|
By: CREDIT
SUISSE SECURITIES (USA) LLC
|
|||
|
By:
|
/s/ David Grill | ||
|
Name:
|
David Grill | ||
|
Title:
|
Managing Director | ||
|
By: BANC
OF AMERICA SECURITIES LLC
|
|||
|
By:
|
/s/ Joseph A Crowley | ||
|
Name:
|
Joseph A Crowley | ||
|
Title:
|
Vice President | ||
SCHEDULE
I
|
Underwriter
|
Principal
Amount of Notes To Be Purchased
|
|
|
Credit
Suisse Securities (USA) LLC
|
$ |
150,000,000.00
|
|
Banc
of America Securities LLC
|
$ |
$150,000,000.00
|
|
Barclays
Capital Inc.
|
$ |
$150,000,000.00
|
|
J.P.
Morgan Securities Inc.
|
$ |
$12,500,000.00
|
|
HSBC
Securities (USA) Inc.
|
$ |
$12,500,000.00
|
|
Deutsche
Bank Securities Inc.
|
$ |
$12,500,000.00
|
|
Wells
Fargo Securities, LLC
|
$ |
$
12,500,000.00
|
|
Total
|
$ |
$500,000,000.00
|
SCHEDULE II
Filed
pursuant to Rule 433
Registration
Nos. 333-158531 and 333-158531-05
TERM
SHEET
PartnerRe
Finance B LLC
5.500%
SENIOR NOTES DUE 2020
|
Issuer:
|
PartnerRe
Finance B LLC
|
|
Guarantor:
|
PartnerRe
Ltd.
|
|
Securities:
|
5.500%
Senior Notes due 2020
|
|
Legal
Format:
|
SEC
Registered
|
|
Amount:
|
$500,000,000
|
|
Ratings
(1)
:
|
Moody’s
Investors Service: A2 (stable)
Standard
& Poor’s: A (negative)
Fitch:
A+ (negative)
|
|
Trade
Date:
|
March
10, 2010
|
|
Settlement
Date:
|
March
15, 2010 (T+3)
|
|
Maturity
Date:
|
June
1, 2020
|
|
Reference
Treasury:
|
3.625%
due February 15, 2020
|
|
Reference
Treasury Yield:
|
3.716%
|
|
Reoffer
Spread to Treasury:
|
+180
bps
|
|
Reoffer
Yield:
|
5.516%
|
|
Coupon:
|
5.500%
|
|
Denominations:
|
$2,000
and multiples of $1,000
|
|
Interest
Payment Dates:
|
Semi-annually
in arrears on June 1 and December 1, beginning on June 1,
2010
|
|
Price
to Public:
|
99.885%
|
|
Price
to Issuer:
|
99.235%
|
|
Make-Whole
Call:
|
Treasury
plus 30 basis points
|
|
CUSIP:
|
70213BAA9
|
|
Book
Running Managers:
|
Banc
of America Securities LLC
Barclays
Capital Inc.
Credit
Suisse Securities (USA) LLC
|
|
Co-Managers:
|
J.P.
Morgan Securities Inc.
HSBC
Securities (USA) Inc.
Deutsche
Bank Securities Inc.
Wells
Fargo Securities, LLC
|
(1) An
explanation of the significance of ratings may be obtained from the rating
agencies. Generally, rating agencies base their ratings on such material and
information, and such of their own investigations, studies and assumptions, as
they deem appropriate. The rating of the notes should be evaluated independently
from similar ratings of other securities. A credit rating of a security is not a
recommendation to buy, sell or hold securities and may be subject to review,
revision, suspension, reduction or withdrawal at any time by the assigning
rating agency.
The
issuer has filed a registration statement, including a prospectus, with the SEC
for the offering to which this communication relates. Before you invest, you
should read the prospectus in that registration statement and other documents
the issuer has filed with the SEC for more complete information about the issuer
and this offering. You may get these documents for free by visiting EDGAR on the
SEC Web site at www.sec.gov. Alternatively, the Bookrunning Managers in the
offering will arrange to send you the prospectus if you request it by contacting
Banc of America Securities LLC toll-free at 1-800-294-1322, Barclays Capital
Inc. toll-free at 1-888-603-5847, or the Credit Suisse Prospectus Department
located at One Madison Avenue, New York, NY 10010
(telephone: 1-800-221-1037).
EXHIBIT A
|
New
York
Menlo
Park
Washington
DC
London
Paris
|
Madrid
Tokyo
Beijing
Hong
Kong
|
|
Davis
Polk & Wardwell
LLP
450
Lexington Avenue
New
York, NY 10017
|
212 450
4000 tel
212 701 5800 fax |
|
March [●],
2010
|
Banc of America
Securities LLC
Barclays Capital
Inc.
as
Representatives of the several Underwriters named
in
Schedule I to the Underwriting Agreement referred to below
c/o Credit Suisse
Securities (USA) LLC
Eleven Madison
Avenue
New York, New York
10010-3629
We
have examined originals or copies, certified or otherwise identified to our
satisfaction, of such documents, corporate records, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purpose of rendering this opinion.
We
have also reviewed the Company’s registration statement on Form S-3 (File No.
333-158531) (including the documents incorporated by reference therein (the
“
Incorporated
Documents
”)) filed with the Securities and Exchange Commission (the
“
Commission
”)
pursuant to the provisions of the Securities Act of 1933, as amended (the “
Act
”),
relating to the registration
|
PartnerRe
Ltd.
Wellesley
House South
90 Pitts Bay
Road
Pembroke HM
08
Bermuda
|
Phone +1 441
292 0888
Fax +1 441 292
7010
www.partnerre.com
|
|
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
2
|
March [●],
2010
|
of
securities (the “
Shelf
Securities
”) to be issued from time to time by the Company and have
participated in the preparation of the preliminary prospectus supplement dated
March [●], 2010 (the “
Preliminary
Prospectus
”) relating to the Securities, the free writing prospectus set
forth in Schedule II to the Underwriting Agreement and the prospectus supplement
dated March [●], 2010 relating to the Securities (the “
Prospectus
Supplement
”). The registration statement became effective
under the Act, and the Indenture qualified under the Trust Indenture Act of
1939, as amended (the “
Trust
Indenture Act
”), on April 10, 2009. The registration statement
at the date of the Underwriting Agreement, including the Incorporated Documents
and the information deemed to be part of the registration statement at the time
of effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to
as the “
Registration
Statement
”, and the related prospectus (including the Incorporated
Documents) dated April 10, 2009 relating to certain of the Shelf Securities is
hereinafter referred to as the “
Base
Prospectus
”. The Base Prospectus, as supplemented by the
Preliminary Prospectus Supplement, together with the free writing prospectus set
forth in Schedule II to the Underwriting Agreement for the Securities are
hereinafter called the “
Time
of Sale Prospectus
”. The Base Prospectus, as supplemented by
the Prospectus Supplement, in the form first used to confirm sales of the
Securities (or in the form first made available by the Company to the
Underwriters to meet requests of purchasers of the Securities under Rule 173
under the Act), is hereinafter referred to as the “
Prospectus
”.
We
have assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”),
except for required EDGAR formatting changes, to physical copies of the
documents submitted for our examination.
Capitalized terms
used but not otherwise defined herein are used as defined in the Underwriting
Agreement.
Based on the
foregoing, we are of the opinion that:
(i)
PartnerRe
U.S. Corporation and the Company are companies validly existing in good standing
under the laws of the State of Delaware and have full power and authority to own
or lease their property and to conduct their business as described in the Time
of Sale Prospectus and the Prospectus;
(ii)
The Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(iii)
The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization by the Guarantor and the
Indenture Trustee, is a valid and binding agreement of the Company, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights generally, concepts of reasonableness
and equitable principles of general applicability, provided that we express no
opinion as to the enforceability of any waiver of rights under any usury or stay
law;
(iv)
The Notes have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to the Underwriting Agreement, will
be valid and binding obligations of the Company,
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
3
|
March [●],
2010
|
enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights generally, concepts of reasonableness and equitable principles
of general applicability, and will be entitled to the benefits of the Indenture
pursuant to which such Notes are to be issued, provided that we express no
opinion as to the enforceability of any waiver of rights under any usury or stay
law;
(v)
Assuming
the due authorization by the Guarantor and the Guarantee Trustee, the Guarantee
is a valid and binding agreement of the Guarantor, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency and similar laws
affecting creditors’ rights generally, concepts of reasonableness and equitable
principles of general applicability;
(vi)
The issuance, sale or delivery of the Notes by the Company, the execution
and delivery by the PartnerRe Entities of, the performance by the PartnerRe
Entities of their obligations under, the Indenture, the Securities and the
Underwriting Agreement (collectively, the “
Documents
”),
the compliance by any of the PartnerRe Entities with the provisions thereof, and
the consummation by any of the PartnerRe Entities of any of the transactions
contemplated thereby (A) will not 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 federal or New York Regulatory Authority, except to the extent such
contravention would not have a Material Adverse Effect, (ii) to the best of our
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, which
agreement, indenture, lease or instrument is, in each case, included or
incorporated by reference as an exhibit to the Guarantor’s Annual Report on Form
10-K for the year ended December 31, 2009, except to the extent such
contravention would not have a Material Adverse Effect, (iii) the certificate of
formation or limited liability agreement of the Company or (iv) to our knowledge
(and based solely on review and discussion with the Guarantor’s Chief Legal
Counsel), any Order of any United States federal or New York Regulatory
Authority that is applicable to the PartnerRe Entities or any of the
Subsidiaries or any of their respective properties except to the extent such
contravention would not have a Material Adverse Effect, or (B) to the best of
our knowledge, will not 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 which agreement or instrument is,
in each case, included or incorporated by reference as an exhibit to the
Guarantor’s Annual Report on Form 10-K for the year ended December 31, 2009,
except where any such lien, charge or encumbrance would not have a Material
Adverse Effect;
(vii)
No
consent, approval, authorization, or order of, or qualification with, or
registration or filing with, any New York Regulatory Authority or any
governmental body or agency under the federal law of the United States of
America, is required for the execution, delivery and performance by the
PartnerRe Entities of their obligations under the Underwriting Agreement, except
for such consent, approvals, authorizations and orders (1) as have been obtained
and (2) as may be required under state securities, Blue Sky or insurance laws of
the various states in connection with the offer and sale of the
Securities;
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
4
|
March [●],
2010
|
(viii)
To
our knowledge (and based solely on review and discussion with the Guarantor’s
Chief Legal Counsel) there are no legal or governmental proceedings before or by
any U.S. federal or New York Regulatory Authority, now pending, contemplated or
threatened to which the PartnerRe Entities or any of the Subsidiaries is a party
or to which any of their respective properties is subject that is required to be
described in the Time of Sale Prospectus and the Prospectus or any statutes,
regulations or orders that have been enacted, adopted or issued by any U.S.
federal or New York Regulatory Authority or Orders by a U.S. federal or New York
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, the Time of Sale
Prospectus 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;
(ix)
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
U.S. 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 the Underwriting Agreement, the Indenture or the Securities, and
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;
(x)
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 the Underwriting 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 Time of Sale
Prospectus and the Prospectus; and
(xi)
The
PartnerRe Entities are not, and after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described in the
Prospectus, will not be, required to register as an “
investment
company
” as such term is defined in the Investment Company Act of 1940,
as amended.
We
have considered the statements included (a) in the Time of Sale Prospectus and
the Prospectus under the captions “Description of the Debt Securities” and
“Description of the Debt Securities Guarantee” and in the Prospectus Supplement
under the caption “Description of the Notes and the Guarantee
”
(the “
Offering
Summary
”), insofar as they summarize provisions of the Indenture and the
Securities and (b) in the discussion of United States tax matters set forth in
the Prospectus Supplement under the caption “Material U.S. Federal Income Tax
Consequences” (the “
Tax
Considerations Summary
”). In our opinion, the Offering Summary
fairly summarizes the above-mentioned provisions in all material respects and
the Tax
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
5
|
March [●],
2010
|
Considerations
Summary accurately reflects our opinion as to such tax laws (subject to the
qualifications and assumptions set forth in such discussion).
In
rendering the opinions in paragraphs (ii) through (v) above, we have assumed
that each party to the Documents (other than PartnerRe U.S. Corporation and the
Company) has been duly incorporated and is validly existing and in good standing
under the laws of the jurisdiction of its organization. In addition, we have
assumed that the execution, delivery and performance by each party thereto of
each Document to which it is a party, (1) are within its corporate powers, (2)
do not contravene, or constitute a default under, the certificate of
incorporation or bylaws or other constitutive documents of such party, (3)
require no action by or in respect of, or filing with, any governmental body,
agency or official and (4) do not contravene, or constitute a default under, any
provision of applicable law or regulation or any judgment, injunction, order or
decree or any agreement or other instrument binding upon such party, provided
that we do not make any of the foregoing assumptions in clauses (1) through (4)
of this sentence to the extent that we have specifically opined as to such
matters with respect to the PartnerRe Entities, and that each Document is a
valid, binding and enforceable agreement of each party thereto, except to the
extent that rights to indemnity and contribution may be limited by applicable
law, and other than as expressly covered above in respect of the Company or the
Guarantor.
We
have, with your permission: (A) with respect to the opinion in paragraph (i),
relied solely on certificates of good standing relating to PartnerRe U.S.
Corporation and the Company each dated March [●], 2010 issued by the Secretary
of State of the State of Delaware; and (B) with respect to the opinions in
clause (A)(iv) of paragraph (vi) and in paragraph (viii), based our opinion
solely on discussion with the Chief Legal Counsel of PartnerRe Ltd. and without
independent check or verification.
We
are members of the Bar of the State of New York, and the foregoing opinion is
limited to the laws of the State of New York, the federal laws of the United
States of America and the General Corporation Law of the State of
Delaware.
This opinion is
rendered solely to you and the other several Underwriters in connection with the
Underwriting Agreement. This opinion may not be relied upon by you
for any other purpose or relied upon by any other person (including any person
acquiring Securities from the several Underwriters) or furnished to any other
person without our prior written consent. The Bank of New York
Mellon, as Indenture Trustee and Guarantee Trustee, may rely on paragraphs (i),
(iii), (iv) and (v) of this opinion as if they were addressed to it, subject to
the qualifications, limitations and assumptions stated above.
EXHIBIT
A-1
|
New
York
Menlo
Park
Washington
DC
London
Paris
|
Madrid
Tokyo
Beijing
Hong
Kong
|
|
Davis
Polk & Wardwell
LLP
450
Lexington Avenue
New
York, NY 10017
|
212 450
4000 tel
212 701 5800 fax |
|
March [●],
2010
|
Banc of America
Securities LLC
Barclays Capital
Inc.
as
Representatives of the several Underwriters named
in
Schedule I to the Underwriting Agreement referred to below
c/o Credit Suisse
Securities (USA) LLC
Eleven Madison
Avenue
New York, New York
10010-3629
We
have reviewed the Company’s registration statement on Form S-3 (File No.
333-158531) (including the documents incorporated by reference therein (the
“
Incorporated
Documents
”)) filed with the Securities and Exchange Commission (the
“
Commission
”) pursuant
to the provisions of the Securities Act of 1933, as amended (the “
Act
”), relating to the
registration of securities (the “
Shelf Securities
”) to be
issued from time to time by the Company and have participated in the preparation
of the preliminary prospectus supplement dated March [●], 2010 (the “
Preliminary Prospectus
Supplement
”) relating to the Securities, the free writing prospectus set
forth in Schedule II to the Underwriting Agreement and the prospectus
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
2
|
March [●],
2010
|
supplement dated
March [●], 2010 relating to the Securities (the “
Prospectus
Supplement
”). The registration statement at the date of the
Underwriting Agreement, including the Incorporated Documents and the information
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430B under the Act, is hereinafter referred to as the “
Registration Statement
”, and
the related prospectus (including the Incorporated Documents) dated April 10,
2009 relating to certain of the Shelf Securities is hereinafter referred to as
the “
Base
Prospectus
”. The Base Prospectus, as supplemented by the
Preliminary Prospectus Supplement, together with the free writing prospectus set
forth in Schedule II to the Underwriting Agreement for the Securities are
hereinafter called the “
Time of
Sale Prospectus
”. The Base Prospectus, as supplemented by the Prospectus
Supplement, in the form first used to confirm sales of the Securities (or in the
form first made available by the Company to the Underwriters to meet requests of
purchasers of the Securities under Rule 173 under the Act), is hereinafter
referred to as the “
Prospectus
”.
We
have assumed the conformity of the documents filed with the Commission via the
Electronic Data Gathering, Analysis and Retrieval System (“
EDGAR
”), except for required
EDGAR formatting changes, to physical copies of the documents submitted for our
examination.
The primary purpose
of our professional engagement was not to establish or confirm factual matters
or financial, accounting or quantitative information. Furthermore, many
determinations involved in the preparation of the Registration Statement, the
Time of Sale Prospectus and the Prospectus are of a wholly or partially
non-legal character or relate to legal matters outside the scope of our opinion
separately delivered to you today in respect of certain matters under the laws
of the State of New York, the federal laws of the United States of America and
the General Corporation Law of the State of Delaware. As a result, we
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, and we have not
ourselves checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished in such documents (except to the extent
expressly set forth in our opinion letter separately delivered to you today as
to statements included (a) in the Prospectus under the captions “Description of
the Debt Securities” and “Description of the Debt Securities Guarantee”, (b) in
the Prospectus Supplement under the caption “Description of the Notes and the
Guarantee” and (c) in the Prospectus Supplement under the caption “Material U.S.
Federal Income Tax Consequences”). However, in the course of our
acting as counsel to the PartnerRe Entities in connection with the review of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, we have
generally reviewed and discussed with your representatives and your counsel and
with certain officers and employees of, and counsel and independent public
accountants for, the Guarantor the information furnished, whether or not subject
to our check and verification. We have also reviewed and relied upon
certain corporate records and documents, letters from counsel and accountants
and oral and written statements of officers and other representatives of the
Company and others as to the existence and consequence of certain factual and
other matters.
On
the basis of the information gained in the course of the performance of the
services rendered above, but without independent check or verification except as
stated above:
|
Credit Suisse
Securities (USA) LLC
Banc of
America Securities LLC
Barclays
Capital Inc.,
as
Representatives of the several Underwriters
named in
Schedule I to the Underwriting Agreement
|
3
|
March [●],
2010
|
(i)
the Registration Statement and the Prospectus appear on their face
to be appropriately responsive in all material respects to the requirements of
the Act and the applicable rules and regulations of the Commission
thereunder;
(ii)
the
Incorporated Documents when filed with the Commission appeared on their face to
be appropriately responsive in all material respects to the requirements of the
Securities Exchange Act of 1934, as amended, and the applicable rules and
regulations of the Commission thereunder; and
(iii)
nothing
has come to our attention that causes us to believe that, insofar as relevant to
the offering of the Securities:
(a) as
of the effective date and on the date of the Underwriting Agreement, the
Registration Statement 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,
(b) at
4:30 p.m. EST on March [●], 2010, the Time of Sale Prospectus contained any
untrue statement of a material fact or omitted 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, or
(c) the
Prospectus as of the date of the Underwriting Agreement or as of the date hereof
contained or contains any untrue statement of a material fact or omitted 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
providing this letter to you and the other several Underwriters, we have not
been called to pass upon, and we express no view regarding, the financial
statements or financial schedules or other financial or accounting data included
in the Registration Statement, the Time of Sale Prospectus, the Prospectus, or
the Statement of Eligibility of the Trustee on Form T-1. In addition,
we express no view as to the conveyance of the Time of Sale Prospectus or the
information contained therein to investors.
This letter is
delivered solely to you and the other several Underwriters in connection with
the Underwriting Agreement. This letter may not be relied upon by you
for any other purpose or relied upon by any other person (including any person
acquiring Securities from the several Underwriters) or furnished to any other
person without our prior written consent.
EXHIBIT B
De
|
|
|
|
CREDIT SUISSE
SECURITIES (USA) LLC
BANC OF
AMERICA SECURITIES LLC
BARCLAYS
CAPITAL INC.
as
Representatives of the Underwriters listed in Schedule I to
the
Underwriting Agreement
c/o CREDIT
SUISSE SECURITIES (USA) LLC
Eleven
Madison Avenue
New York, New
York 10010-3629
|
March [●],
2010
|
|
PartnerRe
Ltd.
|
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Dear
Sirs
I am Associate
General Counsel for PartnerRe Ltd., a company incorporated under the laws of
Bermuda (the “
Company
”),
and this opinion as to Bermuda law is addressed to you in connection with an
underwriting agreement dated March
[●]
, 2010
(the “
Underwriting
Agreement
”) among you, as representatives of the several Underwriters
listed in Schedule I thereto (the “
Underwriters
”), the Company
and PartnerRe Finance B LLC, a Delaware limited liability company (“
PartnerRe Finance
”), pursuant
to which you agreed to purchase $
[●]
of
PartnerRe Finance’s
[●]
% senior
notes due 2020 (the “
Notes
”) pursuant to an
Indenture and First Supplemental Indenture, each dated March
[●]
, 2010
(together, the “
Indenture
”), among the
Company, PartnerRe Finance and The Bank of New York Mellon, as trustee (the
“
Indenture Trustee
”).
The Company will fully and unconditionally guarantee the payment of the Notes to
the extent set forth in the Debt Securities Guarantee Agreement and the First
Supplemental Debt Securities Guarantee Agreement, each dated March
[●]
, 2010
(together, the “
Guarantee
”), between the
Company and The Bank of New York Mellon, as trustee (the “
Guarantee
Trustee
”).
The lawyers on the
Company staff (with whom I have consulted) acted for the Company in the
preparation of the registration statement of the Company on Form S-3
(Registration No. 333-158531) (including the documents incorporated by reference
therein (the “
Incorporated
Documents
”)) filed with the Securities and Exchange Commission pursuant
to the provisions of the Securities Act of 1933, as amended (the “
Act
”), relating to the
registration of securities (the “
Shelf Securities
”) to be
issued from time to time by the Company. I have participated in the
preparation of the preliminary prospectus supplement dated March
[●]
, 2010
(the “
Preliminary Prospectus
Supplement
”) relating to the Securities, the free writing prospectus set
forth in
Schedule II to the
Underwriting Agreement and the prospectus supplement dated March
[●]
, 2010
relating to the Securities (the “
Prospectus
Supplement
”). The registration statement became effective
under the Act on April 10, 2009. Indenture qualified under the Trust
Indenture Act of 1939, as amended (the “
Trust Indenture Act
”), on
April 10, 2009. The registration statement as amended at the date of
the Underwriting Agreement, including the Incorporated Documents and the
information deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430B under the Act, is hereinafter referred to as
the “
Registration
Statement
”, and the related prospectus (including the Incorporated
Documents) dated April 10, 2009 relating to certain of the Shelf Securities is
hereinafter referred to as the “
Base
Prospectus
.” The Base Prospectus, as supplemented by the
Prospectus Supplement, in the form first used to confirm sales of the Notes and
the Guarantee (or in the form first made available by the Company to the
Underwriters to meet requests of purchasers of the Securities under Rule 173
under the Act), is hereinafter referred to as the “
Prospectus
”. The
Guarantee together with the Notes are herein referred to as the “
Securities
”.
For the purposes of
this opinion I have examined and relied upon the documents listed in
Schedule I to this opinion (the “
Documents
”). Unless otherwise
defined herein, capitalized terms have the meanings assigned to them in the
Underwriting Agreement.
Assumptions
In stating my
opinion I have assumed:
|
(a)
|
the
authenticity, accuracy and completeness of all Documents submitted to me
as originals and the conformity to authentic original Documents of all
Documents submitted to me as certified, conformed, notarised, faxed or
photostatic copies;
|
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(b)
|
that each of
the Documents and other such documentation which was received by
electronic means is complete, intact and in conformity with the
transmission as sent;
|
|
(c)
|
the
genuineness of all signatures on the Documents (other than the Company in
respect of the Underwriting Agreement, Guarantee and the
Indenture);
|
|
(d)
|
the
authority, capacity and power of each of the persons signing the Documents
(other than the Company in respect of the Underwriting Agreement,
Guarantee and the Indenture);
|
|
(e)
|
that any
representation, warranty or statement of fact or law, other than as to the
laws of Bermuda, made in any of the Documents are true, accurate and
complete in all respects material to this
opinion;
|
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(f)
|
that the
Underwriting Agreement, Guarantee and the Indenture each constitute the
legal, valid and binding obligations of each of the parties thereto, other
than the Company, enforceable in accordance with their terms under the
laws of its jurisdiction of incorporation or its jurisdiction of formation
and under the laws of the State of New York by which they are expressed to
be governed;
|
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(g)
|
that the
Underwriting Agreement, Guarantee and the Indenture have each been validly
authorised, executed and delivered by each of the parties thereto, other
than the
|
|
Company, and
the performance thereof is within the capacity and powers of each such
party thereto, and that each such party to which the Company purportedly
delivered the Agreement has actually received and accepted delivery of the
Underwriting Agreement, Guarantee and the
Indenture;
|
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(h)
|
that the
Underwriting Agreement, Guarantee and the Indenture are in the proper
legal form to be admissible in evidence and enforced in the courts, and in
accordance with the laws of the State of New York by which they are
expressed to be governed;
|
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(i)
|
that there
are no provisions of the laws or regulations of any jurisdiction other
than Bermuda which would be contravened by the execution or delivery of
the Underwriting Agreement, Guarantee and the Indenture or which would
have any implication in relation to the opinion expressed herein and that,
insofar as any obligation under, or action to be taken under, the
Underwriting Agreement, Guarantee and the Indenture is required to be
performed or taken in any jurisdiction outside Bermuda, the performance of
such obligation or the taking of such action will constitute a valid and
binding obligation of each of the parties thereto under the laws of that
jurisdiction and will not be illegal by virtue of the laws of that
jurisdiction;
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(j)
|
that the
Underwriters are not carrying on (whether generally or in connection with
the Underwriting Agreement, Guarantee and the Indenture) investment
business in or from within Bermuda under the provisions of the Investment
Business Act 1998 as amended from time to
time;
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(k)
|
that the
records which were the subject of the Searches were complete and accurate
at the time of such search and disclosed all information which is material
for the purposes of this opinion and such information has not since the
date of the Searches been materially altered;
and
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(l)
|
that each
Director of the Company, when the Board of Directors of the Company
adopted the Resolutions, discharged his fiduciary duty owed to the Company
and acted honestly and in good faith with a view to the best interests of
the Company.
|
Opinion
Based upon and
subject to the foregoing and subject to the reservations set out below and to
any matters not disclosed to us, I am of the opinion that:
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(1)
|
Each of the
Company and Partner Reinsurance Company Ltd. (“
Partner Reinsurance
”),
is a company duly organized and validly existing in good standing 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 Time of Sale Prospectus 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;
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(2)
|
The Company
has the power and authority to enter into the Underwriting Agreement, the
Guarantee and the Indenture; the execution, delivery and performance of
its obligations under the Underwriting Agreement by the Company have been
duly and validly
|
|
authorized by
the Company; and the Underwriting Agreement, the Guarantee and the
Indenture have been duly executed and delivered by the
Company;
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(3)
|
The
authorized share capital of the Company is as set forth under the caption
“Capitalization” in the Time of Sale Prospectus and the Prospectus and
conforms in all material respects as to Bermuda legal matters to the
description thereof contained in the Time of Sale Prospectus and the
Prospectus; and the share capital of the Company 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 Company or a wholly-owned subsidiary of the
Company;
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(4)
|
Based solely
on a Company Search 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 Company or Partner
Reinsurance;
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(5)
|
Neither the
execution, delivery and performance by the Company of its obligations
under the Underwriting Agreement, the Guarantee or the Indenture nor the
compliance by the Company with the provisions thereof, as the case may be,
nor the consummation by the Company of any of the transactions
contemplated thereby 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 Company 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
Company or Partner Reinsurance, or (B) result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company or
Partner Reinsurance in Bermuda;
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(6)
|
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 Company of its obligations under the Underwriting
Agreement, the Guarantee or the Indenture that has not been obtained or
effected;
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(7)
|
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 Company is not required to be registered as an insurance
company under the Bermuda Insurance
Act;
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(8)
|
The
consummation of the transactions contemplated by the Underwriting
Agreement (including but not limited to any actions taken pursuant to the
indemnification and contribution provisions contained therein) will not,
subject to Section 39A(2A) of the Companies Act, constitute unlawful
financial assistance by the Company or Partner Reinsurance under Bermuda
law;
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(9)
|
All
statements made (A) in the Time of Sale Prospectus and Prospectus
(including the documents incorporated therein by reference) with respect
to (1) the Securities, (2) the memorandum of association, bye-laws or
other organizational documents of the Company or Partner Reinsurance, (3)
statutes, regulations, rules, treaties and other laws
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of Bermuda
(including, but not limited to, statements made with respect to insurance,
regulatory and tax matters and to the Bermuda Insurance Act), and (4)
enforcement of judgments in Bermuda, and (B) in the Registration Statement
in Item 15 with respect to the Company, in each case insofar as such
statements constitute summaries of documents referred to therein, fairly
and accurately present the information set forth therein and my opinion as
to such matter;
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(10)
|
None of the
Underwriters nor any of the subsequent purchasers of the Securities are
subject to any stamp duty, excise or similar tax imposed in Bermuda in
connection with the offering, sale or purchase of the
Securities;
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(11)
|
The Company
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 Company’s
Annual Report on Form 10-K for the year ended 31 December 2009 under the
caption “Business - Taxation of the Company and its Subsidiaries -
Bermuda”;
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(12)
|
The Company,
as provided in the Registration Statement, has duly and irrevocably
appointed PartnerRe U.S. Corporation as its agent for the purposes
described in the Underwriting 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 Time of Sale
Prospectus and the Prospectus and such appointment is valid under Bermuda
law;
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(13)
|
Under the
laws of Bermuda, the submission by the Company 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 the Underwriting
Agreement, the Guarantee, the Indenture, or the 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 the
Underwriting Agreement would be recognized by the courts of Bermuda as
valid and binding provided such submission is accepted by any United
States Federal or New York State court sitting in the Borough of
Manhattan, The City of New York, New York valid and binding under the laws
of the State of New York; and service of process effected in the manner
set forth in the Underwriting Agreement or the Indenture will be effective
under the laws of Bermuda to confer personal jurisdiction over the
Company, assuming this to be the case under the laws of the State of New
York;
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(14)
|
The choice of
the laws of New York as the governing law of the Underwriting Agreement,
the Guarantee and the Indenture 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 the
Underwriting Agreement, the Guarantee or the Indenture; the laws of New
York would be recognized and applied by such court as the laws governing
the Underwriting Agreement; provided that (i) the point is specifically
pleaded, (ii) such choice of law is valid and binding under the laws of
the
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State of New
York, and (iii) recognition would not be contrary to public policy as that
term is understood under Bermuda
law;
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(15)
|
In order to
ensure the legality, validity, enforceability or admissibility in evidence
of the Time of Sale Prospectus, the Prospectus, the Underwriting
Agreement, the Guarantee or the Indenture, 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;
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(16)
|
A final and
conclusive judgment of a New York State or a Federal Court against the
Company or any Subsidiary based upon the Underwriting Agreement, the
Guarantee or the Indenture, 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 judgment are known, but, on general principles I
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
(B) the
judgment 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;
and
|
(17)
|
There are no
legal or governmental proceedings of any Bermuda Regulatory Authority
pending or, to the best of my knowledge, threatened against any of the
Company or Partner Reinsurance or to which any of them or any of their
respective properties is subject, based solely on the Litigation
Search.
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Reservations
I
have the following reservations:
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(a)
|
The term
“enforceable,” as used in this opinion means that there is a way of
ensuring that each party performs an agreement or that there are remedies
available for breach.
|
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(b)
|
I express no
opinion as to the availability of equitable remedies such as specific
performance or injunctive relief, or as to any matters which are within
the discretion of the courts of Bermuda in respect of any obligations of
the Company as set out in the Underwriting Agreement, the Guarantee or the
Indenture. Further, I express no opinion as to the validity or
binding effect of any waiver of or obligation to waive either any
provision of law (whether substantive or procedural) or any right or
remedy.
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(c)
|
Enforcement
of the obligations of the Company under the Underwriting Agreement, the
Guarantee or the Indenture may be limited or affected by applicable laws
from time to time in effect relating to bankruptcy, insolvency or
liquidation or any other laws or other legal procedures affecting
generally the enforcement of creditors’
rights.
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(d)
|
Enforcement
of the obligations of the Company under the Underwriting Agreement, the
Guarantee or the Indenture may be the subject of a statutory limitation of
the time within which such proceedings may be
brought.
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(e)
|
I express no
opinion as to any law other than Bermuda law and none of the opinions
expressed herein relates to compliance with or matters governed by the
laws of any jurisdiction except Bermuda. This opinion is
limited to Bermuda law as applied by the courts of Bermuda at the date
hereof.
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(f)
|
Where an
obligation is to be performed in a jurisdiction other than Bermuda, the
courts of Bermuda may refuse to enforce it to the extent that such
performance would be illegal under the laws of, or contrary to public
policy of, such other jurisdiction.
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(g)
|
I express no
opinion as to the validity, binding effect or enforceability of any
provision incorporated into the Underwriting Agreement, the Guarantee or
the Indenture by reference to a law other than that of Bermuda, or as to
the availability in Bermuda of remedies which are available in other
jurisdictions.
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(h)
|
Where a
person is vested with discretion or may determine a matter in his or its
opinion, such discretion may have to be exercised reasonably or such an
opinion may have to be based on reasonable
grounds.
|
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(i)
|
I express no
opinion as to the validity or binding effect of any provision of the
Underwriting Agreement, the Guarantee or the Indenture, which provides for
the severance of illegal, invalid or unenforceable
provisions.
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(j)
|
A Bermuda
court may refuse to give effect to any provisions of the Underwriting
Agreement, the Guarantee or the Indenture in respect of costs of
unsuccessful litigation brought before the Bermuda court or where that
court has itself made an order for
costs.
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(k)
|
Any provision
in the Underwriting Agreement, the Guarantee or the Indenture that certain
calculations or certificates will be conclusive and binding will not be
effective if such calculations or certificates are fraudulent or erroneous
on their face and will not necessarily prevent judicial enquiries into the
merits of any claim by an aggrieved
party.
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(l)
|
Searches of
the Register of Companies at the office of the Registrar of Companies and
of the Supreme Court Causes Book at the Registry of the Supreme Court are
not conclusive and it should be noted that the Register of Companies and
the Supreme Court Causes Book do not
reveal:
|
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(i)
|
whether an
application to the Supreme Court for a winding up petition or for the
appointment of a receiver or manager has been prepared but not yet been
presented or has been represented but does not appear in the Causes Book
at the date and time the search is
concluded;
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(ii)
|
whether any
arbitration or administrative proceedings are pending or whether any
proceedings are threatened, or whether any arbitrator has been
appointed;
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(iii)
|
details of
matters which have been lodged for filing or registration which as a
matter of general practice of the Registrar of Companies would have or
should have been disclosed on the public file but have not actually been
registered or to the extent that they have been registered have not been
disclosed or appear in the public records at the date and time the search
is concluded;
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(iv)
|
details of
matters which should have been lodged for registration but have not been
lodged for registration at the date the search is concluded;
or
|
|
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(v)
|
whether a
receiver or manager has been appointed privately pursuant to the
provisions of a debenture or other security, unless notice of the fact has
been entered in the register of charges in accordance with the provisions
of the Companies Act.
|
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(m)
|
In order to
issue this opinion I have carried out the Litigation Search as referred to
in Schedule I to this opinion and have not enquired as to whether there
has been any change since the date of such
search.
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(n)
|
In paragraph
(1) above, the term “good standing” means that the Company has received a
Certificate of Compliance from the Minister of Finance; and that Partner
Reinsurance has received a Certificate of Compliance from the Bermuda
Monetary Authority.
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(o)
|
The opinions
expressed in paragraph 17 above are based solely on the results of the
Litigation Search, which is not
conclusive.
|
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(p)
|
Any reference
in this opinion to shares being “non-assessable” shall mean, in relation
to fully-paid shares of the Company or of Partner Reinsurance, subject to
any contrary provision in any agreement between such companies and the
holders of such shares that no shareholder shall be bound by an alteration
of the memorandum of association or bye-laws of the respective company
after the date on which he became a shareholder, if and so far as the
alteration required him to take, or subscribe for, additional shares, or
in any way increases his liability to contribute to the share capital of,
or otherwise to pay money to, the respective company in respect of his
shareholding in such company.
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Disclosure
This opinion is
issued on the basis that it will be construed in accordance with the provisions
of Bermuda law, is limited to and is given on the basis of the current law and
legal practice in Bermuda and will not give rise to action in any other
jurisdiction. The opinion is addressed to and may be relied upon by the
Underwriters in relation to the transaction referred to above. I authorize that
it may also be relied upon by Willkie Farr & Gallagher LLP and Davis Polk
& Wardwell LLP. The opinion is not to be made available to or relied upon by
any other person, firm or entity or used for any other purpose whatsoever
without our my written consent.
Yours
faithfully
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Jean-Paul
Dyer
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Associate
General Counsel
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PartnerRe
Ltd.
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SCHEDULE
I
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1.
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The entries
and filings shown in respect of the Company and Partner Reinsurance in the
Supreme Court Causes Book maintained at the Registry of the Supreme Court
in Hamilton, Bermuda, as revealed by a search completed on March [●], 2010
the “Litigation Search”).
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2.
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The entries
and filings shown in respect of the Company and Partner Reinsurance in the
file of the Company and Partner Reinsurance maintained in the Register of
the Companies at the office of the Registrar of Companies in Hamilton,
Bermuda, as revealed in by a search completed on March 9, 2010 (the
“Company Search”).
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(The Company Search
and the Litigation Search are collectively referred to as the
“Searches”)
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3.
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Certified
copies of the Certificate of Incorporation, Memorandum of Association and
Bye-laws of the Company and Partner Reinsurance (collectively referred to
as the “Constitutional Documents”).
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4.
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The
resolutions duly adopted by the Board of Directors of the Company pursuant
to a meeting of the Board of Directors held on November 20, 2009 and
February 25, 2010 (the
"Resolutions”)
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5.
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Certificate
of Compliance dated March 9, 2010 issued by the Ministry of Finance in
respect of the Company.
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6.
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Certificate
of Compliance dated February 1, 2010 issued by the Bermuda Monetary
Authority in respect of Partner
Reinsurance.
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7.
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A copy of the
Underwriting Agreement dated March [●],
2010.
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8.
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A copy of the
Guarantee Agreement dated March [●],
2010.
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9.
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A copy of the
Indenture dated March [●], 2010.
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10.
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A copy of the
registration statement on Form S-3 Registration No.
333-158531.
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11.
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A copy of the
Prospectus Supplement dated March [●], 2010 with respect to the
Securities.
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12.
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Copies of the
tax assurances issued by the Minister of Finance dated 26 and 27 August
1993 in respect of the Company and Partner Reinsurance under the Exempted
Undertakings Tax Exemptions Act 1966 of
Bermuda.
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13.
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A copy of a
certificate of registration from the Registrar of Companies dated 12 July
1995 confirming that Partner Reinsurance is registered as a Class 4
insurer under the Insurance Act 1978 of
Bermuda.
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10
