Exhibit
4.3
DEBT
SECURITIES GUARANTEE AGREEMENT
BETWEEN
PARTNERRE
LTD.
(AS
GUARANTOR)
AND
THE
BANK OF NEW YORK
(AS
GUARANTEE TRUSTEE)
DATED
AS OF
May
27, 2008
TABLE OF CONTENTS
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Page
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ARTICLE 1
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DEFINITIONS
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Section
1.01. Definitions
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1
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ARTICLE 2
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TRUST
INDENTURE ACT
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Section
2.01. Trust Indenture Act: Application
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3
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Section
2.02. List of Holders
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3
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Section
2.03. Reports by the Guarantee Trustee
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4
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Section
2.04. Periodic Reports to the Guarantee
Trustee
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4
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Section
2.05. Evidence of Compliance with Conditions
Precedent
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4
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Section
2.06. Events of Default; Waiver
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4
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Section
2.07. Event of Default; Notice
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4
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Section
2.08. Conflicting Interests
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5
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ARTICLE 3
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POWERS,
DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
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Section
3.01. Powers, and Duties of the Guarantee
Trustee
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5
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Section
3.02. Certain Rights of the Guarantee
Trustee
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7
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Section
3.03. Indemnity
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9
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ARTICLE 4
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GUARANTEE
TRUSTEE
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Section
4.01. Guarantee Trustee; Eligibility
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9
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Section
4.02. Appointment, Removal and Resignation of
Guarantee Trustees
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10
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ARTICLE 5
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GUARANTEE
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Section
5.01. Guarantee
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10
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Section
5.02. Waiver of Notice and Demand
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11
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Section
5.03. Obligations Not Affected
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11
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Section
5.04. Rights of Holders
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12
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Section
5.05. Guarantee of Payment
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12
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Section
5.06. Subrogation
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12
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Section
5.07. Independent Obligations
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12
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Section
5.08. Net Payments
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13
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ARTICLE 6
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LIMITATION
OF TRANSACTIONS; RANKING
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Section
6.01. Limitation of Transactions
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14
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Section
6.02. Ranking
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15
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Section
6.03. Pari Passu Guarantees
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15
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ARTICLE 7
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TERMINATION
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Section
7.01. Termination
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15
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ARTICLE 8
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MISCELLANEOUS
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Section
8.01. Successors and Assigns
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16
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Section
8.02. Amendments
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16
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Section
8.03. Notices
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16
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Section
8.04. Benefit
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17
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Section
8.05. Governing Law
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18
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Section
8.06. Interpretation
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18
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Section
8.07. Submission to Jurisdiction
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18
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Section
8.08. Judgment Currency
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19
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Section
8.09. Waiver Of Jury Trial
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20
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Section
8.10. Force Majeure
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20
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GUARANTEE
AGREEMENT
This
GUARANTEE AGREEMENT (this “ Guarantee
Agreement ” or this “ Guarantee
”), dated as of May 27, 2008, is executed and delivered
by PartnerRe Ltd., a Bermuda company (“ PartnerRe ”
or the “ Guarantor
”), having its principal executive offices at 90 Pitts
Bay Road, Pembroke HM 08, Bermuda, and The Bank of New York, a
New York banking corporation, having a corporate trust office
located at 101 Barclay Street, Floor 8W, New York, New York
10286, as trustee (the “ Guarantee Trustee
”), for the benefit of the Holders (as defined herein)
from time to time of the Notes (as defined herein) issued by
PartnerRe Finance A LLC, a Delaware limited liability company
(the “ Issuer
”).
WHEREAS,
pursuant to an Indenture, dated as of May 27, 2008 (the
“ Indenture
”), among the Issuer, the Guarantor and the
Guarantee Trustee, as trustee thereunder, the Issuer may
issue senior unsecured debt securities (the “
Notes
”).
WHEREAS,
as incentive for the Holders (as defined in the Indenture) to
purchase such Notes, the Guarantor desires irrevocably and
unconditionally, to guarantee the obligations of the Issuer
under the Indenture.
NOW,
THEREFORE, in consideration of the purchase and acceptance of
the Notes by the Holders thereof, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor
executes and delivers this Guarantee Agreement for the benefit
of the Holders.
ARTICLE 1
Definitions
Section
1.01 . Definitions.
As used in this Guarantee Agreement, the terms set forth below
shall, unless the context otherwise requires, have the
following meanings. Capitalized or otherwise defined terms
used, but not otherwise defined herein shall have the meanings
assigned to such terms in the Indenture as in effect on the
date hereof.
“
Additional
Amounts ” means any additional amounts which are
required hereby or by the terms of the Notes, under
circumstances specified herein or therein, to be paid by the
Guarantor in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified herein and
therein and which are owing to such Holders.
“
Affiliate ”
of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or
indirect common control
with
such specified Person; provided, however
, that an Affiliate of the Guarantor shall not be deemed to
include the Issuer. For the purpose of this definition,
“ control ”
when used with respect to any specified Person means the power
to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “
controlling
” and “ controlled ”
have meanings correlative to the foregoing.
“
Authorized
Officer ” means, when used with respect to any
Person, the Chairman of the Board of Directors, a Vice
Chairman, the President, a Vice President, the Chief Financial
Officer, the Treasurer, an Assistant Treasurer, the Chief
Investment Officer, the Chief Accounting Officer, the Chief
Legal Counsel, the Secretary or an Assistant Secretary, of
such Person.
“
Event of
Default ” means a default by the Guarantor on any
of its payment or other obligations under this Guarantee
Agreement; provided, however
, that, except with respect to a payment default, the
Guarantor shall have received notice of default and shall not
have cured such default within 60 days after receipt of such
notice.
“
Guarantee
Trustee ” means The Bank of New York, until a
Successor Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this
Guarantee Agreement and thereafter means each such Successor
Guarantee Trustee.
“
Indenture ”
has the meaning set forth in the preamble hereto.
“
List of
Holders ” has the meaning specified in Section
2.02(a).
“
Notes
” has the meaning set forth in the preamble
hereto.
“
Officers’
Certificate ” means, with respect to any Person,
a certificate signed by two Authorized Officers, at least one
of which is a principal executive, principal financial or
principal accounting officer, and is delivered to the
Guarantee Trustee. Any Officers’ Certificate delivered
with respect to compliance with a condition or covenant
provided for in this Guarantee shall include:
(a)
a statement that each officer signing the Officers’
Certificate has read the covenant or condition and the
definitions relating thereto;
(b)
a brief statement of the nature and scope of the examination
or investigation undertaken by such officer in rendering the
Officers’ Certificate;
(c)
a statement that such officer has made such examination or
investigation as, in such officer’s opinion, is
necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(d)
a statement as to whether, in the opinion of such officer,
such condition or covenant has been complied
with.
“
Person
” means a legal person, including any individual,
corporation, estate, partnership, joint venture, association,
joint stock company, limited liability company, trust,
unincorporated association or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
“
Responsible
Officer ” means, with respect to the Guarantee
Trustee, any officer of the Guarantee Trustee with direct
responsibility for administration of this Guarantee Agreement
and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred
because of that officer’s knowledge of and familiarity
with the particular subject.
“
Successor
Guarantee Trustee ” means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee
Trustee under Section 4.01.
“
Trust
Indenture Act ” means the Trust Indenture Act of
1939, as amended.
ARTICLE 2
Trust Indenture Act
Section
2.01 . Trust
Indenture Act: Application.
(a) This
Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee
Agreement and shall, to the extent applicable, be governed by
such provisions.
(b) If
and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
Section
2.02 . List of
Holders.
(a) Within
30 days after the receipt by the Guarantor of a request in
writing from the Guarantee Trustee, the Guarantor shall
furnish or cause to be furnished to the Guarantee Trustee a
list, in such form as the Guarantee Trustee may reasonably
require, of the names and addresses of the Holders (“
List of
Holders ”), such List of Holders to be as of a
date not more than 15 days prior to the time such List of
Holders is furnished, in each case to the extent such
information is in the possession or control of the Guarantor
and is not identical to a previously supplied list of Holders
or has not otherwise been received by the
Guarantee
Trustee in its capacity as such. The Guarantee Trustee may
destroy any List of Holders previously given to it on receipt
of a new List of Holders.
(b) The
Guarantee Trustee shall comply with its obligations under
Section 311(a), Section 311(b) and Section 312(b) of the Trust
Indenture Act.
Section
2.03 . Reports by
the Guarantee Trustee. Within 60 days after
May 15 of each year commencing with May 15, 2009, the
Guarantee Trustee shall provide to the Holders such reports as
are required by Section 313 of the Trust Indenture Act, if
any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust
Indenture Act.
Section
2.04 . Periodic
Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the
Securities and Exchange Commission and the Holders, such
documents, reports and information, if any, as required by
Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture
Act, in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
Section
2.05 . Evidence of
Compliance with Conditions Precedent. The
Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided
for in this Guarantee Agreement that relate to any of the
matters set forth in Section 314(c) of the Trust Indenture
Act. Any certificate or opinion required to be given by an
officer pursuant to Section 314(c)(1) may be given in the form
of an Officers’ Certificate.
Section
2.06 . Events of
Default; Waiver. The holders of not less
than a majority of the outstanding principal amount of the
Notes may, by vote, on behalf of all Holders, waive any past
Event of Default and its consequences. Upon such waiver, any
such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent
thereon.
Section
2.07 . Event of
Default; Notice.
(a) The
Guarantee Trustee shall, within 90 days after the occurrence
of an Event of Default known to the Guarantee Trustee,
transmit by mail, first class postage prepaid, to the Holders,
notices of all such Events of Default, unless such defaults
have been cured or waived before the giving of such notice,
provided, except in the case of a default in the payment by
the Guarantor of any amount due under this Guarantee
Agreement, the Guarantee Trustee shall be protected in
withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the
Guarantee
Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The
Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have
received written notice, or a Responsible Officer of the
Guarantee Trustee shall have actual knowledge or shall have
obtained written notice, of such Event of
Default.
Section
2.08 . Conflicting
Interests. The Indenture shall be deemed to
be specifically described in this Guarantee Agreement for the
purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
ARTICLE 3
Powers, Duties and Rights of Guarantee Trustee
Section
3.01 . Powers, and
Duties of the Guarantee Trustee.
(a) This
Guarantee Agreement shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall
not transfer this Guarantee Agreement to any Person except a
Holder exercising his or her rights pursuant to Section
5.04(d) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as
Successor Guarantee Trustee. The right, title and interest of
the Guarantee Trustee shall automatically vest in any
Successor Guarantee Trustee, upon acceptance by such Successor
Guarantee Trustee of its appointment hereunder, and such
vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered
pursuant to the appointment of such Successor Guarantee
Trustee.
(b) If
an Event of Default hereunder or under the Indenture has
occurred and is continuing, the Guarantee Trustee shall
enforce this Guarantee Agreement for the benefit of the
Holders.
(c) The
Guarantee Trustee, before the occurrence of any Event of
Default hereunder or under the Indenture and after the curing
or waiver of all Events of Default that may have occurred,
shall undertake to perform only such duties as are
specifically set forth in this Guarantee Agreement, and no
implied covenants shall be read into this Guarantee Agreement
against the Guarantee Trustee. In case an Event of Default has
occurred hereunder or under the Indenture (that has not been
cured or waived pursuant to Section 2.06 of this Guarantee
Agreement or Section 5.13
of the Indenture ), the Guarantee Trustee shall
exercise such of the rights and powers vested in it by this
Guarantee Agreement, and use the same degree of care and skill
in its exercise thereof, as a
prudent
person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(d) No
provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action,
its negligent failure to act or its own bad faith or willful
misconduct, except that:
(i) prior
to the occurrence of any Event of Default hereunder or under
the Indenture and after the curing or waiving of any such
Events of Default that may have occurred:
(A) the
duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee
Agreement, and the Guarantee Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Guarantee Agreement,
and
(B) in
the absence of bad faith on the part of the Guarantee Trustee,
the Guarantee Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished
to the Guarantee Trustee and conforming to the requirements of
this Guarantee Agreement; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement;
(ii) the
Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the
Guarantee Trustee shall not be liable (including, without
limitation, for consequential damages) with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the holders of not less than
a majority of the outstanding principal amount of the Notes
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee,
or exercising any trust or power conferred upon the Guarantee
Trustee under this Guarantee Agreement; and
(iv) no
provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its
duties or in the exercise
of
any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it under
the terms of this Guarantee Agreement or adequate indemnity
against such risk or liability is not reasonably assured to
it.
Section
3.02 . Certain
Rights of the Guarantee Trustee.
(a) Subject
to the provisions of Section 3.01:
(i) The
Guarantee Trustee may rely upon, and shall be fully protected
in acting or refraining from acting upon, any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any
direction or act of the Guarantor contemplated by this
Guarantee Agreement shall be sufficiently evidenced by an
Officers’ Certificate unless otherwise prescribed
herein.
(iii) Whenever,
in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting any
action hereunder, the Guarantee Trustee (unless other evidence
is herein specifically prescribed) may, in the absence of bad
faith on its part, request and rely upon an Officers’
Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor.
(iv) The
Guarantee Trustee may consult with competent legal counsel,
and the written advice or opinion of such counsel with respect
to legal matters shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in accordance
with such advice or opinion. Such counsel may be counsel to
the Guarantor or any of its Affiliates and may include any of
its employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent
jurisdiction.
(v) The
Guarantee Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless
such Holder shall have provided to the Guarantee Trustee such
security and indemnity reasonably satisfactory to the
Guarantee Trustee, against the costs, expenses (including
reasonable attorneys’ fees and expenses)
and
liabilities
that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that ,
nothing contained in this Section 3.02(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event
of Default hereunder or under the Indenture, of its obligation
to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The
Guarantee Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but
the Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit.
(vii
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