EXHIBIT 10.57
CONTROL AGREEMENT
Control Agreement dated as of November 27, 2002, by and among ST. XXXX
REINSURANCE COMPANY LIMITED ("PARTY A"), PLATINUM RE (UK) LIMITED ("PARTY B"),
AND STATE STREET BANK AND TRUST COMPANY ("CUSTODIAN") (the "AGREEMENT").
WHEREAS, pursuant to a custodian and investment accounting agreement
between Custodian and various affiliated parties including Party B (as amended,
the "CUSTODIAN AGREEMENT"), Custodian acts as custodian for Party B's assets
and, as such Custodian, has established a custodial account in the name of Party
B in which the Collateral, as defined below (together with other assets of Party
B) is held; and
WHEREAS, Party A and Party B have entered into a retrocession
agreement, dated as of November __, 2002 (the "RETROCESSION AGREEMENT") and A
security agreement, dated as of November__, 2002 in the form attached hereto as
Exhibit A (the "SECURITY AGREEMENT") pursuant to the terms of which, Party B
will from time to time grant a continuing first priority security interest over
certain assets specified by Party B and identified in writing to Custodian as
Collateral as defined in the Security Agreement (the "COLLATERAL") to secure
Party B's obligations under the Retrocession Agreements; and
WHEREAS, Party A, Party B and Custodian are entering into this
Agreement for the purpose of appointing Custodian to serve as collateral agent
for Party A and to serve as securities intermediary as herein provided in order
to provide Party A with control of the Collateral Accounts and the Collateral
credited thereto and held therein (each as defined below), in each case for the
purpose of perfecting and establishing the priority of Party A's security
interest in such Collateral;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, it is agreed as follows:
1. APPOINTMENT AND ESTABLISHMENT OF ACCOUNTS.
1.1 Party A hereby appoints Custodian as collateral agent on its
behalf and Custodian hereby accepts such appointment. In addition, Custodian
agrees to act as securities intermediary and/or depositary bank, as applicable,
with respect to the Collateral Accounts and the Collateral held therein pursuant
hereto.
1.2 The Custodian has established and will maintain a segregated
account (which may include one or more sub-accounts) entitled "Platinum Re (UK)
Limited for the Benefit of St. Xxxx Reinsurance Company Limited" (the
"Securities Account"); and a separate and segregated deposit account or accounts
(as defined in Section 9-102 of the UCC) entitled "Platinum Re (UK) Limited for
the Benefit of St. Xxxx Reinsurance Company Limited" (the "Deposit Account", and
together with the Securities Account, the "COLLATERAL ACCOUNTS"), all as more
particularly described on the attached Schedule I, hereto. Each party hereto
agrees that (i) the Securities Account constitutes a "securities account" within
the meaning of Article 8 of the UCC, and (ii) all property now or hereafter
held, credited or earned by, in or to the credit of Securities
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Account (other than "Identified Securities", as defined in Section 5(vi), and
cash) shall be treated as "financial assets" within the meaning of UCC Section
S-102(a)(9). Each of the Collateral Accounts shall be maintained separately and
apart from any other account or sub-account of Party B. The Custodian shall not
change the name of the Collateral Accounts without the prior written consent of
Party A. Except for specified "Identified Securities", as provided hereinafter,
Party B agrees that all financial assets credited to the Collateral Accounts
shall be registered in the name of the Custodian, endorsed to the Custodian or
in blank or credited to another securities account maintained in the name of the
Custodian, and except for such Identified Securities, no financial asset
credited to the Collateral Accounts shall be registered in the name of Party B,
payable to the order of Party B or specially endorsed to Party B except to the
extent the foregoing have been specially endorsed to the Custodian or in blank.
1.3 The Custodian agrees that it shall promptly notify Party A and
Party B in writing after becoming aware that any financial asset which
constitutes Collateral is registered or endorsed otherwise than as provided in
the foregoing Section 1.2; provided, however, that the Custodian shall have no
liability hereunder for the failure to deliver such notice except to the extent
such failure results from its negligence or misconduct.
1.4 Party B, from time to time, shall instruct Custodian in
writing by any of the means mutually agreed to between Party B and Custodian
(which shall constitute "Proper Instructions" under the Custodian Agreement), to
segregate and hold in a separate account the Collateral for the benefit of Party
A, whereupon any such Collateral, other than cash Collateral, shall be credited
to and held in the Securities Account, and any such cash Collateral shall be
credited to and held in the Deposit Account. Custodian shall have no
responsibility for determining the adequacy of any Collateral required hereunder
or under the Retrocession Agreement, nor will it assume responsibility for any
calculations related to any Collateral requirements under the Retrocession
Agreement.
1.5 All Cash Proceeds (as defined in UCC Section 9-102(a)(9)) of
the Collateral received by the Custodian, except for the Distributions (as
defined in the Security Agreement (the "Distributions")), shall be deposited in
the Collateral Accounts and become part of the Collateral.
2. ACCOUNT CONTROL.
2.1 Security Interest. This Agreement is intended by Party A and
Party B to grant "control" of the Collateral Accounts to Party A for purposes of
the perfection and priority of Party A's security interest in such Collateral
pursuant to Article 8 and Article 9 of the UCC, and Custodian hereby
acknowledges that it has been advised of Party B's grant to Party A of a
security interest in the Collateral Accounts and the Collateral held therein.
Notwithstanding the foregoing, Custodian makes no representation or warranty
with respect to the creation or enforceability of any security interest in the
Collateral Accounts or the Collateral held therein. Custodian shall promptly and
in the exercise of due care and reasonable commercial standards comply with
"entitlement orders" (as that term is defined in UCC Section 8-102(a)(8)),
including but not limited to a Notice of Exclusive Control substantially in the
form attached hereto as Exhibit B ("NOTICE OF EXCLUSIVE CONTROL"), originated by
Party A and concerning the Collateral, without the further consent of Party B,
including without limitation any entitlement order originated by Party A
instructing the Custodian to deliver any or all of the Collateral to Party A
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or its designees.
2.2 Control by Party B. Unless and except to the extent it has
received a contrary entitlement order from Party A pursuant to Section 2.1, and
except as provided in Section 2.3(i), below: (i) Custodian shall take actions
with respect to the Collateral in the Collateral Accounts upon the instructions
of Party B, and (ii) Custodian shall have no responsibility or liability to
Party A or Party B for actions taken in accordance with such instructions. All
entitlement orders and other instructions and communications that Party B is
entitled, or desires, to give or make under this Agreement may be given or made
either by Party B itself or its investment advisor as designated in writing by
Party B to the Custodian from time to time.
2.3 Control by Party A.
(i) Party A agrees to provide Custodian, in the form of Exhibit C
attached (as may be amended from time to time), the names and signatures of
authorized parties who may give notices, instructions, or entitlement orders
concerning the Collateral Accounts and the Collateral held therein. All
entitlement orders and other instructions and communications that Party A is
entitled, or desires, to give or make under this Agreement may be given or made
either by Party A itself or its attorney in fact, as designated in writing by
Party A to the Custodian from time to time. Other means of notice, instruction,
or entitlement orders may be used provided that Party A and Custodian agree to
appropriate security procedures. Upon receipt by Custodian of a Notice of
Exclusive Control, and unless and until such Notice of Exclusive Control has
been revoked in writing by Party A, Custodian shall thereafter follow only the
instructions of Party A with respect to the Collateral Accounts and shall comply
with any entitlement order or instructions (within the meaning of Sections
8-102, 9-104, and 9-106 of the UCC) received from Party A, without further
consent of Party B or any other person, and Custodian will not comply with
entitlement orders or instructions concerning the Collateral originated by Party
B without the prior written consent of Party A.
(ii) Party A represents and warrants to Party B that Party A .will
only issue to Custodian a Notice of Exclusive Control if Party A has determined
in good faith that an event has occurred which entitles Party A to exercise its
rights as a secured parry with respect to the Collateral in the Collateral
Accounts.
(iii) Custodian shall have no responsibility or liability to Party B
for complying with a Notice of Exclusive Control or complying with entitlement
orders or instructions originated by Party A concerning the Collateral Accounts
and the Collateral held therein. Custodian shall have no duty to investigate or
make any determination to verify compliance by Party A or Party B with
applicable law. Nor shall Custodian have any duty to verify the occurrence of an
event entitling Party A to exercise its rights as a secured party with respect
to the Collateral in the Collateral Accounts, and Custodian shall be fully
protected in complying with a Notice of Exclusive Control whether or not Party B
may allege that no such event has occurred.
(iv) As between Party A and Custodian, notwithstanding any
provision contained herein or in any other document or instrument to the
contrary, Custodian shall not be liable for any action taken or omitted to be
taken at the instruction of Party A, or any action taken or omitted to be taken
under or in connection with this Agreement, except for Custodian's own
negligence or willful misconduct in carrying out such instructions.
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3. DISTRIBUTIONS. Custodian shall transfer the Distributions to the Party
B within ten (10) days following the end of each calendar month, upon proper
written instructions by Party B. to Party B's custodial account or any other
account designated by Party B unless Custodian has received a Notice of
Exclusive Control and, if any Notice of Exclusive Control is in effect, until
such Notice of Exclusive Control has been revoked or rescinded in writing by
Party A. The Distributions shall not be considered Collateral.
4. RELEASE OF COLLATERAL; RELEASE OF SECURITY INTEREST.
4.1 Release of Collateral. As soon as reasonably practicable after
receiving joint instructions from Party A and Parry B, Custodian will release
Collateral held in the Collateral Accounts in accordance with such instructions.
Notwithstanding the foregoing, Custodian will release Collateral held in the
Collateral Accounts upon receipt from Party B of a Substitution Notice as
defined in the Security Agreement notifying Custodian of Party B's intention to
substitute Qualified Assets as defined in the Security Agreement" and in
accordance with instructions from Party B that comport with such Substitution
Notice, provided, that no contrary instructions have been received from Party A,
and that no Notice of Exclusive Control is then in effect.
4.2 Release of Security Interest. Party A agrees to notify
Custodian promptly in writing when all obligations of Party B to Party A under
the Retrocession Agreement and the Security Agreement have been fully satisfied
or Party A otherwise no longer claims any interest in the Collateral in the
Collateral Accounts, whichever is sooner; at which time Custodian shall have no
further liabilities or responsibilities hereunder and Custodian's obligations
under this Agreement shall terminate.
5. DUTIES AND SERVICES OF CUSTODIAN.
(i) Custodian agrees that it is acting as a securities
intermediary, as defined in Section 8-102 of the UCC with respect to the
Collateral in the Securities Account, except Identified Securities. Custodian
agrees, with respect to the Deposit Account, that it is acting as a "bank" as
such term is used in Section 9-102(a)(29) of the UCC. The parties hereto,
acknowledge that the Custodian Agreement is governed by the laws of The
Commonwealth of Massachusetts and that, as a consequence, the jurisdiction of
Custodian as securities intermediary and as bank is The Commonwealth of
Massachusetts.
(ii) Custodian shall have no duties, obligations, responsibilities
or liabilities with respect to the Collateral Accounts and the Collateral held
therein except as and to the extent expressly set forth in this Agreement and
the Custodian Agreement, and no implied duties of any kind shall be read into
this Agreement against Custodian including, without limitation, the duty to
preserve, exercise or enforce rights in the Collateral and the Collateral
Accounts. Custodian shall not be liable or responsible for anything done or
omitted to be done by it in good faith and in the absence of negligence and may
rely and shall be protected in acting upon any notice, instruction, entitlement
orders, or other communication which it reasonably believes to be genuine and
authorized.
(iii) As between Party B and Custodian, except for the rights of
control in favor of Party A agreed to herein, nothing herein shall be deemed to
modify, limit, restrict, amend or supersede the terms of the Custodian
Agreement, and Custodian shall be and remain entitled to all of the rights,
indemnities, powers, and protections in its favor under the Custodian
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Agreement, which shall apply fully to Custodian's actions and omissions
hereunder. Instructions under this Agreement from Party B's authorized
representative given in accordance with the terms of the Custodian Agreement
shall also constitute Proper Instructions under the Custodian Agreement.
(iv) As between Custodian and Party A, Party A shall indemnify and
hold Custodian harmless with regard to any losses or liabilities of Custodian
(including reasonable attorneys' fees) imposed on or incurred by Custodian
arising out of any action or omission of Custodian in accordance with any
notice, instruction, or entitlement order of Party A under this Agreement except
for actions or omissions due to Custodian's own negligence or willful
misconduct.
(v) The parties hereto acknowledge that no "security entitlement"
under the UCC shall exist with respect to any cash or to any financial asset
held in the Collateral Accounts which is registered in the name of Party B,
payable to the order of the Party B, or specially indorsed to Party B or any
third party (each such asset an "IDENTIFIED SECURITY"), except to the extent
such Identified Security has been specially indorsed by Party B to Custodian or
in blank. The parties further acknowledge and agree that any such cash and/or
Identified Securities received by Custodian and credited to the Collateral
Accounts from time to time shall (so long as so credited to the Collateral
Accounts and so long as this Agreement remains in effect) be held by Custodian
for the benefit of and on behalf of Party A, not in its capacity as a
"securities intermediary" (as defined in the UCC), but in its capacity as a
collateral agent under and subject to the terms of this Agreement.
(vi) For avoidance of doubt, Party A hereby acknowledges that any
Collateral in the Collateral Accounts issued outside the United States ("FOREIGN
SECURITY SYSTEM ASSETS") which may be held by Custodian, a sub-custodian within
Custodian's network of sub-custodians (each a "SUB-CUSTODIAN") or a depositor}7
or book-entry system for the central handling of securities and other financial
assets in which Custodian or the Sub-Custodian are participants may not permit
Party B to have a security entitlement under the UCC with respect to such
Foreign Security System Assets (and such property shall be deemed for purposes
of this Agreement not to be a financial asset held within the Collateral
Accounts). The parties hereby further acknowledge that Custodian gives no
assurance that a security entitlement is created under the UCC with respect to
Party B's assets held in Euroclear or Clearstream or their successors.
(vii) Custodian shall from time to time employ one or more
sub-custodians in accordance with the terms of the Custodian Agreement.
6. FORCE MAJEURE; SPECIAL DAMAGES. Custodian shall not be liable for
delays, errors or losses occurring by reason of circumstances beyond its control
including, without limitation, acts of God, market disorder, terrorism,
insurrection, war, riots, failure of transportation or equipment, or failure of
vendors, communication or power supply. In no event shall Custodian be liable to
any person for indirect, consequential or special damages, even if Custodian has
been advised of the possibility or likelihood of such damages.
7. COMPLIANCE WITH LEGAL PROCESS AND JUDICIAL ORDERS. Custodian shall have
no responsibility or liability to Party A or Party B or to any other person or
entity for acting in accordance with any judicial or arbitral process, order,
writ, judgment, decree or claim of lien relating to the Collateral Accounts and
the Collateral held therein subject to this Agreement notwithstanding that such
order or process is subsequently modified, vacated or otherwise
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determined to have been without legal force or effect.
8. CUSTODIAN REPRESENTATIONS. Custodian agrees and confirms, as of the
date hereof, and at all times until the termination of this Agreement, that it
has not entered into, and until the termination of this Agreement will not enter
into, any agreement (other than the Custodian Agreement) with any other person
or entity relating to the Collateral or the Collateral Accounts under which it
has agreed to comply with entitlement orders (as defined in Section 8-102 of the
UCC) of such other person or entity.
9. ACCESS TO REPORTS. Upon any pledge, release, or substitution of
Collateral in the Collateral Accounts, Custodian shall notify Party A within one
business day of such change. Custodian will provide to Party A a copy of a
statement of the Collateral Accounts and the Collateral held therein within five
(5) business days of the end of the calendar month; provided, however, that
Custodian's failure to forward a copy of such statement to Party A shall not
give rise to any liability hereunder.
10. INTERPLEADER. Notwithstanding any provision contained in this Agreement
to the contrary, in the event of any dispute concerning this Agreement or the
disposition of any of the Collateral or the Collateral Accounts, Custodian shall
have the absolute right, at its election, to (a) refrain from taking any action
(other than to hold the Collateral in accordance with the Custodian Agreement)
until directed by written instructions signed by Party B and Party A or by final
order of a court of competent jurisdiction; or (b) in the event of litigation
between Party B and Party A, deliver all of the Collateral in the Collateral
Accounts to the clerk of any court in which such litigation is pending, or file
suit in interpleader and deliver the Collateral in the Collateral Accounts to
the court in which the action is commenced, and obtain an order from the court
requiring the parties to interplead and litigate in such court their claims and
rights among themselves, whereupon Custodian shall thereby be relieved from any
further liability respecting the Collateral and the Collateral Accounts.
11. FEES AND EXPENSES OF CUSTODIAN. In addition to the terms of the
Custodian Agreement, Party B hereby agrees to pay and reimburse Custodian for
any advances, fees, costs, expenses (including, without limitation, reasonable
attorney's fees and costs) and disbursements that may be paid or incurred by
Custodian in connection with this Agreement or the arrangement contemplated
hereby, including any that may be incurred in performing its duties or
responsibilities pursuant to the terms of this Agreement. Any fees, expenses or
other amounts that may be owing to Custodian from time to time pursuant to the
terms hereof, or of the Custodian Agreement shall be secured by any lien,
encumbrance or other right Custodian may have under the Custodian Agreement or
applicable law, and Custodian shall be entitled to exercise its rights and
remedies against the Collateral and Collateral Accounts in accordance with the
terms and conditions of the Custodian Agreement.
It is hereby expressly acknowledged and agreed by the parties that Custodian
(including its agents) shall not be obligated to advance cash or investments to,
for or on behalf of Party B in the Collateral Accounts, provided, however, that
if Custodian does advance cash or investments to the Collateral Accounts for any
purpose (including but not limited to securities settlements, foreign exchange
contracts, assumed settlement or account overdraft) for the benefit of Party B,
any property at any time held pursuant to this Agreement and the Custodian
Agreement shall be security therefor and, should Party B fail to repay Custodian
promptly, Custodian shall be entitled to utilize available cash and to dispose
of Collateral in the Collateral Accounts to the
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extent necessary to obtain reimbursement.
12. NOTICES. Any notice, instruction, entitlement order, or other
instrument required to be given hereunder, or requests and demands to or upon
the respective parties hereto, shall be in writing and may be sent by hand, or
by facsimile transmission, telex, or delivery by any recognized delivery
service, prepaid or, for termination of this Agreement only, by certified or
registered mail, and addressed as follows, or to such other address as any party
may hereafter notify the other respective parties hereto in writing:
If to Part A, then: If to Parry B, then: If to Custodian, then:
St. Xxxx Reinsurance Company Platinum Re (UK) Limited State Street Bank and Trust Company
Limited 00 Xxxx Xxxxxx 000 Xxxxxxxxxxxx Xxxxxx
00 Xxxxxxxxxx Xxxxxx Xxxxxx XX0X 0XX Xxxxxx Xxxx, XX 00000
Xxxxxx Xx 0XX XX Attention: Vice President, Insurance
UK Attention: Xxx Xxxxxx Services
Attention: Company Secretary Telephone: 000-00-000-000-0000 Telephone: (000)000-0000
Telephone: Telecopy: 011-44-207-623-6610 Telecopy: (000)000-0000
Telecopy: 011-44-207-488-6345
13. AMENDMENT. No amendment or modification of this Agreement will be
effective unless it is in writing and signed by each of the parties hereto.
14. TERMINATION. This Agreement shall continue in effect until Party A has
notified Custodian in writing that this Agreement is to be terminated. Upon
receipt of such notice, Party A shall have no further right to originate
entitlement orders concerning the Collateral Accounts and Party B shall be
entitled to originate entitlement orders concerning the Collateral for any
purpose and without limitation except as may be provided in the Custodian
Agreement. This Agreement may also be terminated by Custodian, Party A or, with
the prior written consent of Part A, Party B, and shall terminate in the event
of the termination of the Custodian Agreement, following thirty (30) days prior
written notice to the other parties hereto. Upon termination of this Agreement
by any party, all Collateral in the Collateral Accounts that has not been
released by Party A shall be transferred, within 30 days of such termination, to
a successor custodian designated in writing by Party B and acceptable to Party
A. In the event no successor is agreed upon, Custodian shall be entitled to
petition a court of competent jurisdiction to appoint a successor custodian and
shall be indemnified by Party B for any costs and expenses (including, without
limitation, attorneys' fees) relating thereto.
15. SEVERABILITY. In the event any provision of this Agreement is held
illegal, void or unenforceable, the remainder of this Agreement shall remain in
effect.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts, without giving
effect to the conflict of law provisions thereof
17. HEADINGS. Any headings appearing on this Agreement are for convenience
only and shall not affect the interpretation of any of the terms of this
Agreement.
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18. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, and all such counterparts taken
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers or duly authorized representatives as of
the date first above written.
ST. XXXX REINSURANCE COMPANY LIMITED
BY: /s/ X. Xxxxxxx
-----------------------
Name: X. Xxxxxxx
Title: M.D.
PLATINUM RE (UK) LIMITED
By: /s/ X.X. Xxxxxx
-----------------------
Name: X.X. Xxxxxx
Title: FINANCE DIRECTOR
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
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EXHIBIT A
TO CONTROL AGREEMENT AMONG ST. XXXX REINSURANCE COMPANY LIMITED, PLATINUM RE
(UK) LIMITED AND STATE STREET BANK AND TRUST COMPANY
FORM OF THE SECURITY AGREEMENT
[See attached]
--------------------------------------------------------------------------------
SECURITY AGREEMENT
Dated as of November __, 2002
between
PLATINUM RE (UK) LIMITED,
as Debtor,
and
ST. XXXX REINSURANCE COMPANY LIMITED,
as Secured Party
--------------------------------------------------------------------------------
Article 8 or 9 of the UCC which are used in this Agreement shall have the
meaning specified in such Articles.
(c) As used in this Agreement, the following terms shall
have the following meanings:
"Collateral" has the meaning assigned to that term in Section
2.01 (a).
"Collateral Accounts" mean Deposit Account and Securities
Account.
"Control Agreement" has the meaning assigned to that term in
the Preliminary Statements.
"Custodian" means State Street Bank and Trust Company, a
Massachusetts trust company, as Custodian for the Debtor pursuant to the
Custodian Agreement, or such other custodian as the Debtor may from time to
time appoint with the prior written consent of the Secured Party.
"Custodian Lien" means the lien on the Collateral Accounts in
favor of the Custodian created pursuant to the Control Agreement.
"Custodian Agreement" means that certain Custodian and
Investment Accounting Agreement dated as of November 1, 2002 among the
Custodian, the Debtor and certain related parties, as amended or supplemented
from time to time.
"Deposit Account" means the separate, segregated Deposit
Account listed on Schedule I hereto and any other deposit accounts and
sub-accounts which are established by the Custodian under, and subject to, the
Control Agreement.
"Distributions" means, with respect to Collateral, all
interest, income and other payments and distributions of cash or other property
in the nature of income with respect to that Collateral. Distributions will not
include any item of property acquired by the Secured Party upon any disposition
or liquidation of Collateral.
"Ending Asset Value" has the meaning assigned to that term in
Section 3.02(a).
"Ending Reserves" has the meaning assigned to that term in
Section 3.02(a).
"Excess Reserves" has the meaning assigned to that term in
Section 3.02(b).
"Event of Default" means a failure by the Debtor to pay any
amount due under the Retrocession Agreement within 90 days of the due date for
payment.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
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"Insolvency Event" means any one or more of the following:
(a) the Debtor becomes unable or admits inability to pay its debts as they fall
due, or (b) the appointment of an administrator, receiver manager or
administrative receiver with respect to any of the assets or undertaking of the
Debtor, or (c) the presentation of any petition or making of any order for the
administration or winding up of the Debtor or the taking of any other step in
insolvency proceedings with respect to the Debtor, or (d) the grant of any
moratorium in respect of the indebtedness of the Debtor or the entry into or
proposal by the Debtor of any composition or compromise with its creditors.
"Investment Adviser" means Alliance Capital Management L.P.
or such other investment adviser as the Debtor may from time to time appoint
with the prior written consent of the Secured Party.
"Investment Advisory Agreement" has the meaning assigned to
that term in the Preliminary Statements.
"Investment Guidelines" has the meaning assigned to that term
in the Investment Advisory Agreement.
"Local Business Dav" means:
(a) in relation to a transfer of cash or other property
(other than securities) under this Agreement, a day on which commercial banks
are open for business (including dealings in foreign exchange and foreign
currency deposits) in the place where the relevant account is located and, if
different, in the principal financial center, if any, of the currency of such
payment;
(b) in relation to a transfer of securities under this
Agreement, a day on which the clearance system agreed between the parties for
delivery of the securities is open for the acceptance and execution of
settlement instructions or, if delivery of the securities is contemplated by
other means, a day on which commercial banks are open for business (including
dealings in foreign exchange and foreign currency deposits) in the place(s)
agreed between the parties for this purpose;
(c) in relation to a valuation under this Agreement, a
day on which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in the place of location of the
Custodian and in the place(s) agreed between the parties for this purpose; and
(d) in relation to any notice or other communication
under this Agreement, in the place specified in the address for notice most
recently provided by the recipient.
"Notification Time" means 1:00 p.m., New York time, on a
Local Business Day.
"Notice of Exclusive Control" has the meaning assigned to
that term in the Control Agreement.
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"Obligations" means all present and future obligations from
time to time of the Debtor under the Retrocession Agreement and this Agreement,
including but not limited to obligations relating to (a) reinsured losses and
allocated loss expenses paid by the Secured Party, but not recovered from the
Debtor, (b) reserves for reinsured losses reported and outstanding, (c) reserves
allocated reinsured loss e: for reinsured losses incurred but not reported, and
(d) reserves for allocated reinsured loss expenses and unearned premiums.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, joint venture or other entity, or a government or any political
subdivision or agency thereof.
"Proceeds" has the meaning assigned to that term in Section
9-102(a)(64) of the UCC and, in any event, shall include, without limitation,
the following property: (i) whatever is acquired upon the sale, lease, license,
exchange, or other disposition of the Collateral, (ii) whatever is collected on,
or distributed on account of, the Collateral, (iii) rights arising put of the
Collateral, (iv) to the extent of the value of collateral, claims arising out of
the loss, nonconformity, or interference with the use of, defects or
infringement of rights in, or damage to, the Collateral, or (v) id the extent of
the value of collateral and to the extent payable to the Debtor or the Secured
Party, insurance payable by reason of the loss or nonconformity of, defects or
infringement of rights in, or damage to, the Collateral.
"Property" means, with respect to any Person, any money,
cash, cash equivalents, securities, investments, financial assets, security
entitlements or other investment property.
"Qualifying Assets" means and includes any security that
conforms with the criteria set forth in the Investment Guidelines.
"Reinsurance Contracts" has the meaning assigned to that term
in the Retrocession Agreement.
"Relevant Event" means any one or more of the following: (a)
an Event of Default, or (b) the Debtor's failure to perform or otherwise comply
or procure compliance with any of its obligations under the Retrocession
Agreement, other than a failure constituting an Event of Default, if such
failure continues for five Local Business Days after receiving from the Secured
Party a written notice thereof, or (c) the Debtor's failure to perform or
otherwise comply with any of its obligations under this Agreement, or (d) any
Insolvency Event, or (e) the Investment Adviser's failure to comply with any
investment objectives, policies and restrictions as in effect from time to time
under the Investment Advisory Agreement, or (f) the Custodian's failure to
perform or otherwise comply with any of its obligations under the Control
Agreement, or (g) the Custodian's failure to perform or otherwise comply with
any of its obligations under the Custodian Agreement, if such failure impairs
the security interest granted to the Secured Party under this Agreement.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and all Federal, state, local and foreign laws, rules and
regulations, the rules of the National Association of
4
Securities Dealers and all orders, judgments, decrees or other determinations of
any Governmental Authority or arbitrator, applicable to or binding upon such
Person or any of its property or to which such Person or any of its property is
subject.
"Retrocedant Ceding Commission" has the meaning assigned to
that term in the Retrocession Agreement.
"Retrocession Agreement" has the meaning assigned to that
term in the Preliminary Statements.
"Securities Account" means the separate, segregated
Securities Account listed on Schedule I hereto and any other securities accounts
and sub-accounts which are established by the Custodian under, and subject to,
the Control Agreement.
"Settlement Day" means, in relation to a date, (i) with
respect to a transfer of cash or other property (other than securities), the
next Local Business Day and (ii) with respect to a transfer of securities, the
first Local Business Day after such date on which settlement of a trade in the
relevant securities, if effected on such date, would have been settled in
accordance with customary practice when settling through the clearance system
agreed between the parties for delivery of such securities or, otherwise, on the
market in which such securities are principally traded (or, in either case, if
there is no such customary practice, on the first Local Business Day after such
date on which it is reasonably practicable to deliver such securities).
"Substitute Credit Support" has the meaning assigned to that
term in Section 3.06(a).
"Substitution Notice" has the meaning assigned to that term
in Section 3.06(a).
"UCC" means the Uniform Commercial Code as in effect from
time to time in the Commonwealth of Massachusetts. All terms used herein without
definitions that are defined in the UCC shall have the respective meanings given
to those terms in the UCC, except where the context otherwise requires.
"USD" means United States Dollars.
ARTICLE II
SECURITY INTEREST
Section 2.01 Grant of Security Interest. (a) The Debtor
hereby assigns, pledges, conveys, sets over and transfers unto the Secured
Party, and does hereby grant to the Secured Party, a continuing first priority
security interest (subject to the Custodian Lien) in all of the right, title and
interest of the Debtor in, to and under all of the following, whether now
existing or hereafter from time to time acquired (collectively, the
"Collateral"):
(i) the Deposit Account, including any credit or
other balances of account credited thereto or carried therein or other
amounts transferred thereto;
5
(ii) the Securities Account, including any credit
or other balances of account credited thereto or carried therein or
other amounts transferred thereto;
(iii) all Qualifying Assets, all other Property
transferred or required to be transferred from time to time in, or
credited to or required to be credited from time to time to, the
Collateral Accounts; provided, however, that, except as expressly
provided in Section 4.04, Distributions shall not constitute
Collateral;
(iv) all rights, claims and causes of action, if
any, that the Debtor may have against any Person in respect of the
foregoing; and
(v) all Proceeds of any or all of the other
Collateral.
(b) The Debtor agrees that this Agreement, the security
interest granted pursuant to this Agreement and all rights, remedies, powers
and privileges provided to the Secured Party under this Agreement are in
addition to and not in any way affected or limited by any other security now or
at any time held by the Secured Party to secure payment and performance of the
Obligations.
Section 2.02 Security for Obligations. The Collateral secures
the prompt and complete payment and performance of all the Obligations.
Section 2.03 Continued Perfection of Security Interest. This
Agreement shall create a continuing security interest in the Collateral and
shall remain in full force and effect until the payment and performance in full
of the Obligations. The security interest created under this Agreement shall not
be impaired by any intermediate payment or performance of the whole or any part
of the Obligations but shall secure the ultimate balance of the Obligations. The
Debtor agrees that it will not take any actions or fail to perform any of its
duties or obligations under this Agreement so that after giving effect to such
action or inaction the Secured Party will then, or with the passage of time,
cease to have a first priority perfected security interest (subject to the
Custodian Lien) in any of the Collateral; provided, however, that investments,
cash, securities, interest, dividends, financial assets or. any other Property
withdrawn from the Collateral Accounts in accordance with Section 3.02(b),
3.06(b), 4.03(a) or 6.01 shall not be Collateral from and after the time of such
withdrawal.
Section 2.04 Power of Attorney. The Debtor hereby irrevocably
appoints the Secured Party as its attorney-in-fact with right of substitution,
so that the Secured Party or any other Person empowered by the Secured Party
shall be authorized, without need of further authorization from the Debtor, at
any time upon the occurrence of and during the continuance of any Relevant
Event, in the Secured Party's discretion to take any and all actions authorized
or permitted to be taken by the Secured Party under this Agreement or by law,
including but not limited to the power to:
(a) take any action and execute or otherwise
authenticate any instrument or other record which the Secured
Party may deem necessary or advisable to accomplish the
purposes of this Agreement, including but not
6
limited to, perfection of the security interest created under
this Agreement in any jurisdiction in any part of the world;
(b) execute any transfer, xxxx of sale or other
assurance in respect of the Collateral;
(c) exercise all the rights and powers of the
Debtor in respect of the Collateral;
(d) ask for, demand, collect, xxx for, recover,
receive and give acquittance and receipts for moneys due and
to become due under or in connection with the Collateral;
(e) receive, indorse, and collect any drafts or
other instruments, documents and chattel paper, in connection
therewith; and
(f) file any claims or take any action or
institute any proceedings which the Secured Party may deem
necessary or desirable for the collection of any of the
Collateral or otherwise to enforce the rights of the Secured
Party with respect to any of the Collateral.
The Debtor hereby confirms and ratifies any and all actions
and things performed or done by the Secured Party as the Debtor's
attorney-in-fact or any of its representatives in each case pursuant to the
powers granted hereunder.
This special power of attorney shall be deemed coupled with an
interest, and cannot be revoked by the Debtor until all of the Obligations have
been paid and performed in full and the Retrocession Agreement has been
terminated.
ARTICLE III
CREDIT SUPPORT OBLIGATIONS
Section 3.01 Initial Deposit of Collateral. On the date of
this Agreement, the Debtor is transferring, or causing to be transferred, into
the Collateral Accounts Qualifying Assets having a fair market value as at the
date of this Agreement at least equal to 100% of the premia ceded by the Secured
Party to the Debtor under the Retrocession Agreement.
Section 3.02 Excess Reserves, (a) As of the end of each
calendar quarter, the Debtor shall calculate the fair market value of the Assets
held in the Collateral Accounts as of the last day of such quarter (such amount,
the "Ending Asset Value") and the aggregate loss, loss adjustment expense
reserves, unearned premium reserves, Retrocedant Ceding Commission and other
reserves related to the Reinsurance Contracts as reflected in Debtor's
management accounts, as of the last day of such quarter (the "Ending Reserves")
and shall provide such calculation to the Secured Party within forty-five days
of the end of such quarter.
7
(b) The excess of the Ending Reserves over the Ending
Asset Value, if any, shall be the "Excess Reserves". To the extent the Ending
Reserves exceed the Ending Asset Value, the Debtor shall within 3 Local Business
Days deposit sufficient Qualifying Assets with a fair market value equal to such
Excess Reserves. To the extent the Ending Asset Value exceeds the Ending
Reserves, the Secured Party shall, upon the Debtor's request, join the Debtor in
instructing the Custodian to release Collateral with a fair market value equal
to the amount of such excess, provided, however, that no Relevant Event has
occurred and is continuing.
Section 3.03 Disputed Calculations or Valuations. Upon receipt
of the quarterly calculation from the Debtor, the Secured Party shall have the
right to reasonably object to such calculation and to offer a reasonable
proposal for the amount of the reserves described in Section 3.02 hereof. If the
parties in good faith are not able to resolve the disagreement within two weeks
of the Secured Party's indication of disagreement, the parties shall mutually
agree upon an independent actuarial firm to determine an appropriate level of
aggregate reserves as described in Section 3.02 hereof with respect to the
Reinsurance Contracts, such level to be no more than the amount proposed by the
Secured Party and no less than the amount reported by the Debtor, and both
parties agree to be bound by such determination. In such case the Debtor
shall deposit sufficient Qualifying Assets with a fair market value equal to
Excess Reserves (if any) within 3 Local Business Days after receipt of the
actuary report. The fees and expenses of the actuarial firm shall be shared
equally by the Debtor and the. Secured Party.
Section 3.04 Transfers. Subject to Section 3.03 and unless
otherwise agreed between the parties from time to time, if an obligation to
transfer Qualified Assets or Collateral has become due by the Notification
Time, then the relevant transfer will be made not later than the close of
business on the Settlement Day relating to the date such obligation has become
due; if an obligation becomes due after the Notification Time, then the relevant
transfer will be made not later than the close of business on the Settlement Day
relating to the day after the date such obligation became due.
Section 3.05 Calculations. The parties agree that valuations
calculated by the Debtor or, as the case may be, by the Secured Party for the
purpose of this Agreement shall prevail over any valuations performed by or for
the Investment Adviser pursuant to the terms of the Investment Advisory
Agreement.
Section 3.06 Substitutions.
(a) The Debtor (acting, where applicable, through the
Investment Adviser) may on any Local Business Day by notice (a "Substitution
Notice") inform the Secured Party and the Custodian that it wishes to substitute
the Qualified Assets specified in that Substitution Notice (the "Substitute
Credit Support"') for certain Qualified Assets specified in the Substitution
Notice and held in the Collateral Accounts (the "Original Credit Support").
(b) Following the service of such Substitution Notice,
the Original Credit Support shall be released, upon written instructions by the
Debtor, to the Debtor against delivery of the Substitute Credit Support (or an
undertaking for such deliver) in accordance
8
with the customary settlement procedures; occurred and is continuing. provided,
however, that no Relevant Event has occurred and is continuing.
ARTICLE IV
COLLATERAL
Section 4.01 No Duty. Except to the extent otherwise required
by applicable law, the Secured Party will have no duty with respect to
Collateral including, without limitation, any duty to collect any Distributions,
or enforce or preserve any rights pertaining to Collateral.
Section 4.02 Custodians.
(a) The Debtor shall appoint the Custodian to hold
Collateral in accordance with the Control Agreement, and the Debtor shall cause
all such Collateral to be transferred to, and held by, the Custodian.
(b) The Debtor shall be liable for the acts or omissions
of the Custodian and the Investment Adviser to the same extent that the Debtor
would be liable under this Agreement for its own acts or omissions.
Section 4.03 Maintenance of Collateral Accounts. In addition
to, and not in limitation or in lieu of, the obligation of Custodian to honor
entitlement orders as provided in the Control Agreement,
(a) the Secured Party agrees that until such time, if
any, that the Secured Party delivers a Notice of Exclusive Control to the
Custodian, the Debtor shall be entitled (i) subject to Section 3.06(b), to give
entitlement orders and all other forms of instructions to invest, through the
Investment Adviser, where applicable, the Collateral held in the Collateral
Accounts solely in cash or categories of securities defined as Qualified Assets,
which upon their acquisition shall constitute the Collateral, (ii) subject to
Section 4.04, to receive and give entitlement orders and all other forms of
instructions with respect to all Distributions (subject, where applicable, to
prior deduction by the Custodian of any fees or expenses owed to Custodian by
the Debtor for the provision of its custodial services from time to time), and
(iii) to exercise, or to direct the Custodian to exercise on its behalf, any
voting rights attached to any of the Collateral (but only in a manner consistent
with the terms of this Agreement); provided that the Debtor shall not have the
authority to (x) terminate or close the Collateral Accounts, or (y) sell,
transfer, exchange, assign, lease or hire out, factor, discount, license, lend,
part with its interest in or otherwise dispose of any of the Collateral or
permit the same to occur, or agree to do any of the foregoing, without prior
written consent of the Secured Part}', except, in each case, as expressly
permitted under this Agreement. The Secured Party agrees that (i) until a
Relevant Event occurs or unless a Relevant Event would be caused by a proposed
substitution of Collateral by the Debtor, it shall not give entitlement orders,
deliver Notice of Exclusive Control or give any other forms of instructions with
regard to the Collateral Accounts and the financial assets and other Property on
deposit therein or credited thereto (other than joint instructions in accordance
with this Agreement), and (ii) it shall join the Debtor in giving
9
instructions requested by or on behalf of the Debtor so long as no Relevant
Event then exists or would be caused by the execution of such instructions.
(b) if at any time the Secured Party delivers a Notice of
Exclusive Control to the Custodian, the Debtor agrees that, from and after
delivery thereof until the written revocation or rescission of such notice by
the Secured Party, (i) the Secured Party shall be the sole Person to give all
entitlement orders and other demands and instructions with respect to the
Collateral Accounts or any financial asset credited thereto or carried therein
or any other Collateral, (ii) if it has received any Collateral from the
Custodian in violation of the terms of the Control Agreement, it shall hold
such Collateral in trust for the Secured Party and shall promptly thereafter
deliver such Collateral to the Secured Party and (iii) it shall execute and
deliver, and use its best efforts to cause the Custodian to execute and
deliver, to the Secured Party all proxies and other instruments as the Secured
Party may reasonably request for the purpose of enabling the Secured Party to
exercise any voting or other consensual rights pertaining to any Collateral.
Notice of Exclusive Control shall be deemed to be revoked or rescinded upon
receipt by the Custodian from the Secured Party of written notice thereof. The
Secured Party agrees to deliver a notice of revocation or rescission upon
request of the Debtor at any time when no Relevant Event has occurred or is
continuing.
Section 4.04 Distributions. Subject, where applicable, to
prior deduction by the Custodian of any fees or expenses owed to the Custodian
by the Debtor for the provision of its custodial services from time to time,
the Custodian shall transfer the Distributions to the Debtor within 10 days
following the end of each calendar month, upon proper written instructions by
the Debtor, to Debtor's custodial account held with the Custodian or any other
account designated by the Debtor; provided, however, that the Secured Party has
not delivered a Notice of Exclusive Control that has not been revoke or
rescinded by the Secured Party, and that a Relevant Event has not occurred and
is continuing. The Secured Party shall execute such instructions, if any, as
may be required to permit such credit to be effected. Any Distributions (or
portion thereof) not transferred pursuant to this Section 4.04 shall constitute
Collateral and will be subject to the security interest granted under Section
2.01(a) or otherwise will be subject to the set-off provided in Section 6.01(c).
ARTICLE V
GENERAL REPRESENTATIONS, WARRANTIES AND COVENANTS
The Debtor represents, warrants and covenants, which
representations, warranties and covenants shall be deemed to be repeated as of
each date on which the Debtor transfers, or causes to be transferred, any
Qualified Assets into the Collateral Accounts and shall survive execution and
delivery of this Agreement and the payment in full of the Obligations, as
follows:
Section 5.01 Power to Grant Security Interest. The Debtor
has the power to grant a security interest in any Collateral pursuant hereto
and has taken all necessary actions to authorize the granting of that security
interest.
10
Section 5.02 Necessary Filings. All filings, registrations and
recordings necessary or appropriate to create, preserve, protect and perfect, to
the extent a security interest may be perfected thereby, the security interest
granted by the Debtor to the Secured Party hereby in respect of the Collateral
have been accomplished, and the first priority security interest granted to the
Secured Party pursuant to this Agreement (subject to the Custodian Lien) in and
to the Collateral constitutes a valid first priority perfected security interest
which is superior and prior to the rights of all other Persons (other than the
Custodian Lien) and enforceable against the Debtor (including in Bermuda) and,
in each case, subject to no other Liens, sales, assignments, conveyances,
settings over or transfers.
Section 5.03 No Liens. The Debtor is the owner of all
Collateral free from any Lien or other right, title or interest of any Person
(other than the Custodian Lien), and the Debtor shall defend such Collateral
against all claims and demands of all Persons at any time claiming the same or
any interest therein adverse to the Secured Party.
Section 5.04 Other Financing Statements. There is no financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction) covering or purporting to cover any interest of any kind in
the Collateral, and so long as any of the Obligations remain unpaid, the Debtor
will not execute or authorize to be filed in any public office any financing
statement (or similar statement or instrument of registration under the law of
any jurisdiction.) or statements relating to the Collateral, except financing
statements filed or to be filed in respect of and covering the security
interests granted hereby.
Section 5.05 Consents. No consent of any Person and no
authorization, approval or other action by, and no notice to or filing with, any
Governmental Authority of any jurisdiction is required as of the date of the
execution and delivery of this Agreement for (i) the grant by the Debtor of the
pledge, assignment and security interest granted hereby with respect to the
Collateral, (ii) the execution, delivery or performance of this Agreement by the
Debtor, (iii) the pledge, assignment and security interest created hereby
with respect to the Collateral (including the first priority nature of such
pledge, assignment and security interest with respect to the Collateral (subject
to the Control Agreement and filing of Custodian Lien)) other than the execution
and delivery of the g of appropriate financing statements or similar filings or
notifications in respect of the Collateral or (iv) the exercise by the Secured
Party of the rights provided for in this Agreement or the remedies in respect of
the Collateral pursuant to this Agreement.
(b) The Debtor shall use its best efforts to obtain after
the date of the execution and delivery of this Agreement such other consents,
authorizations, and approvals and obtain such other actions by, and provide such
notices to or make such filings with, any Governmental Authority of any
jurisdiction as may be, in the reasonable judgment of the Secured Party,
necessary after the date of this Agreement (i) for the grant by the Debtor of
the pledge, assignment and security interest granted hereby or for the
execution, delivery or performance of this Agreement by the Debtor, (ii) for the
pledge, assignment and security interest created hereby with respect to the
Collateral (including the first priority nature of such pledge, assignment and
security interest with respect to the Collateral (subject to the Custodian
Lien)) or (iii) for the exercise by the Secured Party of the rights, remedies
and powers provided for in this Agreement or the remedies in respect of the
Collateral pursuant to this Agreement.
11
Section 5.06 Further Actions. The Debtor will, at its own
expense, make, execute, endorse, acknowledge, or otherwise authenticate and file
and/or deliver to the Secured Party from time to time such confirmatory
assignments, conveyances, financing statements, transfer endorsements, powers of
attorney, certificates and other assurances, instruments or other records, and
take such further steps relating to the Collateral and other property or rights
covered by the interests hereby granted, which the Secured Party, upon written
direction, deems reasonably appropriate or advisable to perfect, preserve or
protect its security interests in the Collateral.
Section 5.07 Financing Statements. The Debtor agrees to
execute or otherwise authenticate (if necessary) and deliver to the Secured
Party such financing statements (or similar statement or instrument of
registration under the Jaw of any jurisdiction), in form acceptable to the
Secured Party as it may from time to time reasonably request or as are necessary
or desirable in its reasonable opinion to establish and maintain the security
interests contemplated hereunder as valid, enforceable and first priority
security interests (subject to the Custodian Lien) as provided herein and the
other rights and security contemplated herein, all in accordance with the UCC as
enacted in any and all relevant jurisdictions or any other Requirement of Law.
The Debtor will pay any applicable filing fees and related expenses. The Debtor
authorizes the Secured Party to file any such financing statements without the
signature of the Debtor.
ARTICLE VI
REMEDIES UPON OCCURRENCE OF RELEVANT EVENT
Section 6.01 Remedies: Obtaining and Disposition of the
Collateral Upon Default. The Debtor agrees that, if any Relevant Event has
occurred and is continuing, then and in every such case, subject to any
Requirements of Law, the Secured Party may:
(a) deliver a Notice of Exclusive Control, instructions
or entitlement orders with respect to the Collateral Accounts or the Collateral;
(b) exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it. all
the rights and remedies of a secured party upon default under the UCC to enforce
this Agreement and the security interest contained herein, and also may (A) if
applicable, require the Debtor to, and the Debtor hereby agrees that it will at
its expense and upon request of the Secured Party forthwith, assemble all or
part of the Collateral as directed by the Secured Party and make it available to
the Secured Party at a place to be designated by the Secured Party that is
reasonably convenient to both parties, or (B) without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any of the Secured Party's offices or elsewhere, for cash,
on credit or for future deliver}', and upon such other terms as the Secured
Party may deem commercially reasonable. The Debtor agrees that, to the extent
notice of sale shall be required by law, at least thirty (30) days' notice to
the Debtor of the time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable notification. The Secured
Party shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. The Secured Party may adjourn any public or private
sale from time to time
12
by announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned;
(c) hold any money held by the Secured Party as
Collateral and all cash proceeds received by the Secured Party in respect of any
sale of collection from, or other realization upon all or any part of the
Collateral, as collateral for, and/or, then, or at any time thereafter, apply
such amounts, in whole or in part, against all or any pan of the Obligations,
and to make any currency conversions or effect any transaction in currencies
which it thinks fit, and to do so at such times and rates as it thinks proper;
and
(d) exercise any and all rights and remedies of the
Debtor under or in respect of the Collateral.
Section 6.02 Waiver of Claims. Except as otherwise provided in
this Agreement, the Debtor hereby waives, to the extent permitted by all
Requirements of Law:
(a) all damages occasioned by taking of possession except
any damages which are the direct result of the gross negligence or willful
misconduct of the Secured Party or any Person acting on its behalf or
instruction;
(b) all other requirements as to the time, place and
terms of sale or other requirements with respect to the enforcement of the
Secured Party's rights hereunder; and
(c) all rights of redemption, appraisement, valuation,
stay, extension or moratorium now or hereafter in force under any Requirement of
Law in order to prevent or delay the enforcement of this Agreement (including,
without limitation, any right to claim that such enforcement should be stayed
pending the outcome of any other action or proceeding (including any arbitration
proceeding)) or the absolute sale of the Collateral or any portion thereof, and
the Debtor, for itself and all who may claim under it, insofar as it or the}'
now or hereafter lawfully may, hereby waives the benefit of all such
Requirements of Law.
Any sale of, or the grant of options to purchase, or any other
realization upon, any Collateral shall operate to divest all right, title,
interest, claim and demand, either at law or in equity, of the Debtor therein
and thereto, and shall be a perpetual bar both at law and in equity against the
Debtor and against any and all Persons claiming or attempting to claim the
Collateral so sold, optioned or realized upon, or any part thereof from, through
and under the Debtor.
Section 6.03 Deficiencies and Excess Proceeds. The Secured
Party shall transfer, or cause to be transferred, to the Debtor any proceeds and
Collateral remaining after exercising remedies under Section 6.01 and after
satisfaction in full of all amounts payable by the Debtor with respect to any
Obligations. For the avoidance of doubt, it is understood that the Debtor shall
remain liable to the extent of any deficiency between the amount of the proceeds
of the Collateral and the aggregate amount of the Obligations.
Section 6.04 Remedies Cumulative. No failure or delay on the
part of the Secured Party, in exercising any right, power or privilege hereunder
and no course of dealing between the Debtor and the Secured Party shall operate
as a waiver hereof: nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further
13
exercise hereof or the exercise of any other right, power or privilege
hereunder. The rights, powers and remedies herein expressly provided are
cumulative and not exclusive of any rights, powers or remedies which the Secured
Party would otherwise have. No notice to or demand on the Debtor in any case
shall entitle the Debtor to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the Secured Party to
any other or further action in any circumstances without notice or demand.
Section 6.05 Discontinuance of Proceedings. In case the
Secured Party shall have instituted any proceeding to enforce any right, power
or remedy under this Agreement by foreclosure, sale, entry or otherwise, and
such proceeding shall have been discontinued or abandoned for any reason or
shall have been determined adversely to the Secured Party, then and in every
such case the Debtor, the Secured Party shall be restored to their former
positions and rights hereunder with respect to the Collateral subject to the
security interest created under this Agreement, and all rights, remedies and
powers of the Secured Party shall continue as if no such proceeding had been
instituted.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Expenses.
(a) Except as otherwise provided in this Section 7.01 (b)
and 7.01(c), each party will pay its own costs and expenses (including any
stamp, transfer or similar transaction tax or duty payable on any transfer it is
required to make under this Agreement) in connection with performing its
obligations under this Agreement and neither party will be liable for any such
costs and expenses incurred by the other party.
(b) The Debtor shall promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to Collateral
upon becoming aware of the same.
(c) All reasonable costs, expenses, charges and fees paid
or incurred by the Secured Party in the exercise of any of the rights, remedies
or powers granted hereunder shall be for the account of the Debtor, and the
Debtor undertakes promptly on demand to pay the same or. as the case may be, to
reimburse the Secured Party and/or its agents, representatives, successors and
assigns as the case may be, for any monies paid by it with interest thereon to
the extent that there are then insufficient funds available in the Collateral
Accounts for this purpose.
Section 7.02 Notices. All communications between the parties
hereto or notices provided herein to be given may be given to the following
addresses:
If to the Secured Party:
St. Xxxx Reinsurance Company Limited
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xx 0XX
14
Secured Party; or (d) any invalidity, irregularity or unenforceability of all or
the part of Obligations or of any security therefor.
Section 7.06 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of the parties hereto; provided, however, that the Debtor
may not assign or transfer any of its rights or obligations hereunder without
the prior written consent of the Secured Party.
Section 7.07 Headings Descriptive, etc. The headings of the
sections and subsections of this Agreement are inserted for convenience only and
shall not in any way affect the meaning or construction of any provision of this
Agreement.
Section 7.O8 Governing Law: Submission to Jurisdiction and
Venue. This Agreement is a contract made under the laws of The Commonwealth of
Massachusetts of the United States of America and shall for all purposes be
governed by. and construed in accordance with the laws of such Commonwealth. Any
legal action or proceeding against the Debtor with respect to this Agreement may
be brought in the courts of The Commonwealth of Massachusetts in the County of
Suffolk, or in the federal courts of the United States for the District of
Massachusetts, it being understood that nothing herein shall affect the right of
the Secured Party to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Debtor in any
jurisdiction, and. by execution and deliver}' of this Agreement, the Debtor
hereby irrevocably accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts. The Debtor agrees
that a judgment, after exhaustion of all available appeals, in any such action
or proceeding shall be conclusive and binding upon the Debtor, and may be
enforced in any jurisdiction, by a suit upon such judgment, a certified copy of
which shall be conclusive evidence of the judgment.
(b) The Debtor hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement brought in the courts referred to in clause (a) above and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding, brought in any such court has been brought
in an. in convenient forum.
Section 7.09 Waiver of Jurv Trial. Each of the Debtor and the
Secured Party hereby irrevocably waives all right to trial by jury in any
action, proceeding or counterclaim arising out or relating to this Agreement, or
any other instrument or document delivered hereunder or thereunder.
Section 7.10 Termination: Release. This Agreement shall
terminate on the earlier of (i) the irrevocable payment and performance in full
or termination or waiver of the Obligations (other than contingent surviving
obligations), as confirmed by a joint notice from the Debtor and the Secured
Party, or (ii) such time as the Debtor delivers a notice to the Secured Party
and the Custodian that the Ending Reserves so reported by the Debtor do not
exceed USD 100 million as of two consecutive calendar years ends, provided,
however, that no Relevant Event shall have occurred and be continuing. Upon such
termination, the Secured Party shall, at the Debtor's expense, execute and
deliver to the Debtor such documents, and take such other acts, as the Debtor
shall reasonably request to evidence, or give effect to, such termination.
16
Section 7.11 Reinstatement. Notwithstanding anything herein to
the contrary, this Agreement shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the
Secured Party upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Debtor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Debtor or any substantial part of its property, or otherwise, all as though such
payments had not been made.
Section 7.12 Counterparts. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be an original,
and both of which shall together constitute one and the same instrument.
Section 7.13 Severability. In case any one or more of the
provisions contained in this Agreement shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected and/or
impaired thereby.
[SIGNATURE PAGE FOLLOWS.]
17
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
PLATINUM RE (UK) LIMITED, as Debtor
By: ___________________________
Name:
Title:
ST. XXXX REINSURANCE COMPANY
LIMITED, as Secured Party
By: ___________________________
Name:
Title:
SCHEDULE I
COLLATERAL ACCOUNTS
Deposit Account
Description Number
Platinum Re (UK) fbo St.Xxxx Re 54798137
Securities Account
Description Number
Platinum Re (UK) fbo St. Xxxx Re CIW8
S-1
EXHIBIT B
TO CONTROL AGREEMENT AMONG ST. XXXX REINSURANCE COMPANY LIMITED. PLATINUM
RE (UK) LIMITED AND STATE STREET BANK AND TRUST COMPANY
[Letterhead of Party A]
[Date]
State Street Bank and Trust Company
000 Xxxxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Vice President, Insurance Services
NOTICE OF EXCLUSIVE CONTROL
We hereby instruct you pursuant to the terms of that certain Control Agreement
dated as of ________, 2002 (as from time to time amended and supplemented, the
"CONTROL AGREEMENT") among the undersigned. Platinum Re (UK) Limited (together
with its successors and assigns, "PARTY B") and you, as Custodian, that you (i)
shall not follow any instructions or entitlement orders of Party B with respect
to the Collateral or the Collateral Accounts held by you for Party B, and (ii)
unless and until otherwise expressly instructed by the undersigned, shall
exclusively follow the entitlement orders and instructions of the undersigned
with respect to the Collateral or the Collateral Accounts.
Very truly yours,
St. Xxxx Reinsurance Company Limited
By:_____________________________
Authorized Signatory
cc:
11
EXHIBIT C
TO CONTROL AGREEMENT AMONG ST. XXXX REINSURANCE COMPANY LIMITED, PLATINUM
RE (UK) LIMITED AND STATE STREET BANK AND TRUST COMPANY
AUTHORIZED PERSONS FOR ST. XXXX REINSURANCE COMPANY LIMITED
State Street Bank and Trust Company is directed to accept and act upon
written instructions received from any one of the following persons at St. Xxxx
Reinsurance Company Limited
Name Telephone/Fax Number Signature
---- -------------------- ---------
1. XXXXX XXXXX XXXXXX 1. Telephone (000)00000000 0. /s/ Xxxxx Xxxxx Xxxxxx
_______________________
Facsimile (000)00000000
2. XXXXXXXX XXXX BALLAWGER 2. Telephone (000)00000000 0./s/ Xxxxxxxx Xxxx Ballawger
Facsimile (000)00000000 ____________________________
3. 3. Telephone 3. ___________
Facsimile
4. 4. Telephone 4. ___________
Facsimile
5. 5. Telephone 5. ___________
Facsimile
Authorized by: ____________________
as authorized agent of St. Xxxx Reinsurance Company Limited
Name: _______________________
Title: ______________________
12
SCHEDULE I
TO CONTROL AGREEMENT AMONG ST. XXXX REINSURANCE COMPANY LIMITED. PLATINUM
RE (UK) LIMITED AND STATE STREET BANK AND TRUST COMPANY
COLLATERAL ACCOUNTS
Deposit Account
Description Number
-------------------------------- --------
Platinum Re (UK) fbo St. Xxxx Re 54798137
Securities Account
Description Number
-------------------------------- --------
Platinum Re (UK) fbo St. Xxxx Re CIW8
13
