EXHIBIT 10.32
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[Stamped: RECEIVED
SEP 19 2002
REGISTER OF COMPANIES
BERMUDA]
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of 19 SEPTEMBER 2002, (this "Agreement") made among
Allied World Assurance Company Ltd, a company organized and existing under the
laws of Bermuda (the "Pledgor"), and Citibank, N.A. (the "Pledgee").
PRELIMINARY STATEMENTS.
(1) The Pledgor and the Pledgee have entered into a master agreement (as
form time to time amended, the "Master Agreement") pursuant to which
the Pledgee may, from time to time in its sole discretion, issue for
the account of the Pledgor letters of credit or similar or
equivalent instruments (each a "Credit" and, collectively, the
"Credits").
(2) The Pledgor has agreed to collateralize its obligations to the
Pledgee that result from time to time under the Master Agreement and
in respect of the Credits issued thereunder, whether now existing or
from time to time hereafter incurred or arising, as such obligations
are more fully defined in Section 3 of this Agreement as the Secured
Obligations.
(3) The Pledgor and the Pledgee desire to execute and deliver this
Agreement for the purpose of securing the Secured Obligations (as
such term is defined in Section 3 below) and subjecting the property
hereinafter described to the Lien of this Agreement as security for
the performance of the Secured Obligations.
(4) The Pledgor has opened account number (the "Account") with Mellon
Bank at its office at One Mellon Bank Centre, Room 151 - 1570,
Xxxxxxxxxx, XX 00000-0000 Xxxxxx Xxxxxx of America.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Pledgee to enter into transactions with and to provide services to the
Pledgor and its subsidiaries pursuant to separate agreements or
arrangements between such persons and the Pledgee, the parties hereto
hereby agree as follows:
Section 1. Defined Terms. Except as otherwise expressly provided herein,
capitalized terms used herein shall have the meaning assigned to such
terms in Appendix A.
Section 2. Grant of Security. Subject to and in accordance with the
provisions of this Agreement, the Pledgor hereby assigns, pledges and
grants to the Pledgee a first priority security interest in and a Lien on
all of the Pledgor's right, title and interest, whether now owned or
hereafter acquired, in all of the following (collectively, the
"Collateral"):
(i) the Account;
(ii) the Securities and any Instruments or other Financial Assets
credited to the Account (the "Pledged Securities") including,
without limitation Securities of the type and in the aggregate
amounts specified in Schedule I hereto and any Securities Account
and Security Entitlement in respect of the Account, the Pledged
Securities or any of them;
(iii) all additional Investment Property (including without
limitation) Securities, Security Entitlements, Financial Assets, or
other property and all funds, cash or cash equivalents (together
with any applicable Account or Securities Account) from time to
time; and
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(iv) All proceeds (including, without limitation, cash proceeds) of
any or all of the foregoing, including without limitation, proceeds
that constitute property of the types described in clauses (i), (ii)
and (iii) above.
Section 3. Security of Obligations. This Agreement secures the payment of
all obligations of the Pledgor now or hereafter existing under the Master
Agreement and in respect of the Credits issued thereunder, and this
Agreement, whether for principal, interest, fees, expenses or otherwise
and the payment of any and all expenses (including reasonable counsel fees
and expenses) incurred by the Pledgee in enforcing any rights under this
Agreement (all such obligations being the "Secured Obligations").
Section 4. Delivery of Security Collateral. On or prior to the date
hereof, the Pledgor shall transfer or credit, or cause to be transferred
or credited, all of the Pledged Securities to the Pledgee or to an Account
or a Securities Account under arrangements acceptable to the Pledgee in
its sole discretion. Pledgor shall deliver all other Collateral to the
Pledgee or to a Securities Intermediary subject to the control of the
Pledgee under arrangements acceptable to the Pledgee in its sole
discretion. Upon the occurrence and during the continuance of an Event
Default (as hereafter defined), the Pledgee shall have the right, at any
time it reasonably determines is necessary or desirable to enable the
Pledgee to better perfect or protect the security interests granted
hereunder, upon notice to the Pledgor, to transfer to or to register in
the name of the Pledgee or any of its nominees any or all of the
Collateral.
Section 5. Use of Proceeds. Proceeds that are received in respect of any
Collateral shall be held as cash held as Collateral as provided in Section
2 of this Agreement.
Section 6. Representations and Warranties. The Pledgor represents and
warrants as follows:
(a) The Pledgor is a corporation duly organized and, validly
existing under the laws of its incorporation and has all requisite
corporate power and authority (including, without limitation, all
governmental licenses, permits and other approvals except where such
failure would not have a material adverse effect on the Pledgor's
business), to own or lease and operate its properties and to carry
on its business as now conducted and as proposed to be conducted.
All of the outstanding capital stock of the Pledgor has been validly
issued, is fully paid and non-assessable.
(b) The execution, delivery and performance by the Pledgor of this
Agreement, and the consummation of the transactions contemplated
hereby, are within the Pledgor's corporate powers and have been duly
authorized by all necessary corporate action.
(c) The execution, delivery and performance by the Pledgor of this
Agreement and the consummation of the transactions contemplated
hereby, do not and will not (i) violate any provision of law, rule
or regulation applicable to the Pledgor; (ii) conflict with the
charter or bylaws or substantively similar constitutive documents of
the Pledgor; or (iii) conflict with or result in a breach of, or
constitute a default under, or result in the creation or imposition
of any Lien upon any of the property or assets of the Pledgor or any
of its subsidiaries, under any indenture, loan agreement, mortgage,
deed of trust or other instrument or agreement to which the Pledgor
or any of its subsidiaries may be or become a party or by which it
may be or become bound or to which the property or assets of the
Pledgor of any of its subsidiaries may be or become subject.
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(d) No consent of any other Person and no authorization, approval
or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other third party is
required either (i) for the grant by the Pledgor of the assignment
and security interest granted hereby, for the pledge by the Pledgor
of the Collateral pursuant hereto or for the execution, delivery or
performance of this Agreement by the Pledgor, (ii) for the
perfection or maintenance of the pledge, assignment and security
interest created hereby (including the first priority nature of such
pledge, assignment or security interest) or (iii) for the exercise
by the Pledgee of its rights provided for in this Agreement or the
remedies in respect of the Collateral pursuant to this Agreement,
except as may be required in connection with the disposition of any
portion of the Collateral by laws affecting the offering and sale of
securities generally or as may be applicable to the Pledgee.
(e) This Agreement has been duly executed and delivered by the
Pledgor. This Agreement constitutes, or when executed and delivered
will constitute, the legal, valid and binding obligation of the
Pledgor enforceable against the Pledgor in accordance with its
terms, subject as to enforceability to applicable bankruptcy,
insolvency, and similar laws affecting creditors' rights generally.
(f) The Pledgor is the legal and beneficial owner of the
Collateral and Pledgor has and shall at all times have rights in,
and good and valid title to, the Collateral, free and clear of all
Liens and "adverse claims" (as such term is defined in Section
8-102(a)(1) of the NYUCC).
(g) To the best of the Pledgor's knowledge, no default has
occurred under or with respect to any Collateral as of the date
hereof.
(h) (i) This agreement and the pledge and assignment of the
Collateral pursuant hereto create a valid security in the
Collateral, securing the payment of the Secured Obligations, (ii)
this Agreement and the related Account Control Agreement, dated 19
SEPTEMBER, 2002, by and among the Pledgor, the Pledgee and Mellon
Bank are sufficient to perfect such security interest, and (iii)
assuming the Pledgee has no notice of any Liens or "adverse claims"
(as such terms is defined in Section 8- 102(a)(1) of the NYUCC) with
respect to the collateral, the Pledgee will take the Collateral free
and clear of all Lien and adverse claims.
(i) The Pledgor is subject to civil and commercial law with
respect to its obligations hereunder, and the execution, delivery
and performance by the Pledgor of its obligations under this
Agreement constitute private and commercial acts rather than public
or governmental acts. Neither the Pledgor or any of its properties
has any immunity from jurisdiction of any court or from set-off or
any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) under the laws Bermuda.
(j) (A) This Agreement is in proper legal form under all
applicable laws of Bermuda for the enforcement thereof against
the Pledgor in accordance with its terms. To ensure the
legality, validity, enforceability or admissibility into
evidence of this Agreement it is not necessary that this
Agreement or any other document be filed or recorded with any
governmental authority of Bermuda or that any stamp or similar
tax be paid on or in respect of this Agreement or any other
document delivered pursuant hereto.
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(B) It is not necessary (X) in order for the Pledgee to
enforce any rights or remedies under this Agreement or (Y)
solely by reason of the execution delivery and performance of
this Agreement by the Pledgee, that the Pledgee be licensed or
qualified with Bermudian governmental authority or be entitled
to carry on business in Bermuda.
(k) The Pledgor shall cause Securities of the type specified on
Schedule I to be pledged as Collateral so that at all times the fair
market value of such Securities shall equal or exceed an amount
equal to 115% of the aggregate amount of the then outstanding
Credits; and without limiting the foregoing, if at any time the
Pledgor is not in compliance with the requirements of this
subsection (k), the Pledgor shall forthwith cause additional
Securities of the type specified on Schedule I to be held as
Collateral pursuant to Section 2 to the extent required to cause the
Pledgor to be in compliance with this subsection (k).
Section 7 Further Assurances.
(a) The Pledgor agrees that from time to time, at the expense of
the Pledgor, the Pledgor will promptly execute and deliver all
further Instruments and documents, and take all further action, that
may be necessary or desirable, or that the Pledgee may reasonably
request, in order to continue, perfect and protect any pledge,
assignment or security interest granted or purported to be granted
hereby or to enable the Pledgee to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without
limiting the generality of the foregoing, the Pledgor will execute
and file such financing or continuation statements, or amendments
thereto, and such other Instruments or notices, as may be necessary
or desirable, or as the Pledgee may request, in order to perfect and
preserve the pledge, assignment and security interest granted or
purported to be granted hereby.
(b) The Pledgor hereby authorizes the Pledgee to file one or more
financing or continuation statements, and amendments thereto,
relating to all or any part of the Collateral without the signature
of the Pledgor where permitted by law. A photocopy or other
reproduction of this Agreement or any financing statement covering
the Collateral or any part thereof shall be sufficient as a
financing statement where permitted by law.
In making the representations and warranties hereunder, Pledgor has
assumed that the Pledgee has registered a charge with respect to the
Collateral pursuant to Section 55 of the Bermuda Companies Act of
1981.
Section 8. Distributions.
(a) Other than upon and during the continuance of an Event of
Default (as hereinafter defined), the Pledgor shall be entitled to
receive and retain any and all distributions paid in respect of the
Pledged Securities; provided, however, that any and all
(i) distributions paid or payable other than in cash in
respect of, and Instruments, Financial Assets and other
property received, receivable or otherwise distributed
in respect of, or in exchange for, any Collateral and
(ii) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in
exchange for, any Collateral,
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shall be, and shall be forthwith delivered to the
Pledgee to hold as Collateral subject to the Pledgor's
right to withdraw all Collateral in excess of the
Required Account Value as Provided in Section 3 of the
Account Control Agreement and shall, if received by the
Pledgor, be received in trust for the benefit of the
Pledgee, be segregated from the other property or funds
of the Pledgor and be forthwith delivered to the Pledgee
as Collateral in the same form as so received (with any
necessary endorsement) to the extent the Collateral is
less than the Required Account Value.
(b) For the purpose of this section 8 and Sections 4 and 14
hereof, the terms "Events of Default" shall mean a failure of the
Pledgor to perform in any in any material respect any of its
obligations under the Master Agreement or this Agreement, which
failure shall continue unremedied for ten (10) business days after
written notice thereof shall have been given by the Pledgee to the
Pledgor.
(c) The Pledgee shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all such proxies and other instruments
as the Pledgor may reasonably request for the purpose of enabling
the Pledgor to receive the interest payments that it is authorized
to receive and retain pursuant to paragraph (a) above.
Section 9. Transfer and Other Liens. The Pledgor shall not (i) sell,
assign or otherwise dispose of, or grant any option with respect to, any
of the Collateral, or (ii) create or suffer to exist any Lien upon or with
respect to any of the Collateral, including any right to give any
Entitlement Order with respect to the Collateral, except for the pledge,
assignment and security interest created by this Agreement.
Section 10. Pledgee Appointed Attorney-in-Fact. The Pledgor hereby
irrevocably appoints the Pledgee the Pledgor's attorney-in-fact, with
fully authority upon failure to perform any of the obligations under the
Master Agreement or this Agreement in the place and stead of the Pledgor
and in the name of the Pledgor or otherwise, from time to time to take any
action and to execute any instrument that the Pledgee may deem necessary
or advisable to accomplish the purposes of this Agreement.
Section 11. Pledgee May Perform. If the Pledgor fails to perform any
agreement contained herein, after receipt of a written request from the
Pledgee to do so, the Pledgee may (but shall have no obligation to) itself
perform, or cause performance of, such agreement, and the reasonable
expenses of the Pledgee incurred in connection therewith shall be payable
by the Pledgor under Section 15(b) hereof.
Section 12. The Pledgee's Duties. The powers conferred on the Pledgee
hereunder are solely to protect its interest in the Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Collateral in its possession and the accounting for
moneys actually received by it hereunder, the Pledgee shall have no duty
as to any Collateral, as to ascertaining or taking action with respect to
calls, conversions, exchanges, maturities, tenders or other matters
relative to any Collateral, whether or not the Pledgee has or is deemed to
have knowledge of such matters, or as to the taking of any necessary steps
to preserve rights against any parties or any other rights pertaining to
any Collateral. The Pledgee shall be deemed to have exercised reasonable
care in the custody and preservation of any Collateral in its possession
if such Collateral is accorded treatment substantially equal to that which
the Pledgee accords its own property.
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Section 13. Security Interest Absolute. The obligations of the Pledgor
under this Agreement are independent of the Secured Obligations and any
agreement with respect to the Secured Obligations, and a separate action
or actions may be brought and prosecuted against the Pledgor to enforce
this Agreement, irrespective of whether any action is brought against the
Pledgor or whether the Pledgor is joined in any such action or actions.
All rights of the Pledgee and the pledge, assignment and security interest
hereunder, and all obligations of the Pledgor hereunder, shall be absolute
and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Master Agreement
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of Secured Obligations or any other
amendment or waiver of or any consent to any departure from this
Agreement or the Master Agreement, including, without limitation,
any increase in the Secured Obligations;
(c) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or
consent to departure from any guaranty for all or any of the Secured
Obligations;
(d) any manner of application of the Collateral, or proceeds
thereof, to all or any of the Secured Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Secured Obligations or any other assets of the Pledgor or any of its
subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Pledgor or any of its subsidiaries; or
(f) any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Pledgor or a third
party grantor of a security interest.
Section 14. Remedies. If an Event of Default shall occur and be
continuing:
(a) The Pledgee may 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 NYUCC and also may 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
Pledgee's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Pledgee may deem
commercially reasonable. The Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice
to the Pledgor 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 Pledgee shall not be obligated to make
any sale of Collateral regardless of notice of sale having been
given. The Pledgee may adjourn any public or private sale from time
to time 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.
(b) All cash proceeds received by the Pledgee in respect of any
sale of, collection from, or other realization upon all or any part
of the Collateral may, in the discretion of the Pledgee, be held by
the Pledgee as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Pledgee
pursuant to Section 15) in whole or in part by the Pledgee against,
all or any part of the Secured Obligations in such order as the
Pledgee shall elect. Any surplus of such cash or cash proceeds held
by the Pledgee and remaining after payment in full of all the
Secured Obligations shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
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(c) The Pledgee may, without notice to the Pledgor except as
required by law and at any time or from time to time, charge,
set-off and otherwise apply all or any part of the Secured
Obligations against the Collateral or any part thereof.
Section 15. Indemnity and Expenses.
(a) The Pledgor agrees to indemnify the Pledgee and their
affiliates and their officers, directors, employees, agents,
attorneys and advisors from and against any and all claims, damages,
losses and liabilities growing out of or resulting from this
Agreement (including, without limitation, enforcement of this
Agreement), except claims, damages, losses or liabilities resulting
from the Pledgee's gross negligence or willful misconduct.
(b) The Pledgor will upon demand pay to the Pledgee the amount of
any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, that the
Pledgee may incur in connection with (i) the administration of this
Agreement, (ii) the custody, preservation, use or operation of, or
the sale of, collection from or other realization upon, any of the
Collateral, (iii) the exercise or enforcement (whether through
negotiations, legal proceedings or otherwise) of any of the rights
of the Pledgee hereunder or (iv) the failure by the Pledgor to
perform or observe any of the provisions hereof.
Section 16. Amendments; Waivers; Etc. No amendment or waiver of any
provision of this Agreement, and no consent to any departure by the
Pledgor herefor, shall in any event be effective unless the same shall be
in writing and signed by the Pledgee, and then such waiver or consent
shall be effective only in the specific instance and for the specific
purpose for which given. No failure on the part of the Pledgee to
exercise, and no delay in exercising any right hereunder, shall operate as
a waiver thereof; nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of
any other right.
Section 17. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telecopier,
telegraphic, telex or cable communication) and, mailed telegraphed,
telecopied, telexed, cabled or delivered if to the Pledgor at 00 Xxxxxxxx
Xxxx, XX 00, Xxxxxxxx XXXX, Xxxxxxx or, as to either party, at such other
address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section 17.
All such notices and communications shall, when mailed, telecopied,
telegraphed or telexed, be effective five Business Days after deposit in
the mail, or when telecopied, delivered to the telegraph company or
confirmed by telex answerback, respectively, except that notices and
communications to the Pledgee shall not be effective until received by the
Pledgee. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or of any Exhibit
hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
Section 18. Continuing Security Interest; Assignments. This Agreement
shall create a continuing security interest in the Collateral and shall
(a) remain in full force and effect until the payment in full in cash of
the Secured Obligations, (b) be binding upon the Pledgor and the Pledgee
and their respective successors and assigns and (c) inure, together with
the rights and remedies of the Pledgee and its respective successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (c), the Pledgee may assign or otherwise transfer to any other
Person all or any portion of its rights and obligations under this
Agreement to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted to the
Pledgee herein or otherwise. The Pledgor will, at its own expense, make,
execute, endorse, acknowledge, file
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and/or deliver to the Pledgee such confirmatory assignments, conveyances,
financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments and take such
further steps related to the Collateral and other property or rights
covered by the security interest hereby granted, which the Pledgee deems
reasonably advisable to perfect, preserve or protect its security interest
in the Collateral, including any actions which may be required or
advisable as a result of any amendment or supplement to applicable laws,
including the NYUCC.
Section 19. Release and Termination. Upon the later of the payment in full
in cash of the Secured Obligations or any termination as provided in
Master Agreement, the pledge, assignment and security interest granted
hereby shall terminate and all rights to be Collateral shall revert to the
Pledgor. Upon any such termination, the Pledgee will, at the Pledgor's
expense execute and deliver to the Pledgor such documents as the Pledgor
shall reasonably request to evidence such termination.
SECTION 20. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO
THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER IN RESPECT OF ANY PARTICULAR COLLATERAL IS MANDATORILY GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, IN WHICH
CASE THE LAWS OF SUCH OTHER JURISDICTION SHALL GOVERN SUCH MATTERS.
Section 21. Jurisdiction, Venue.
(a) The Pledgor hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of any
New York State or Federal court (to the extent such court has
subject matter jurisdiction) sitting in New York City and any
appellate court from any thereof in any action or proceeding arising
out of or relating to this Agreement or for the recognition and
enforcement of any judgment, and the Pledgor hereby irrevocably and
unconditionally agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court
or in such Federal court. The Pledgor hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by law. The Pledgor hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out
of or relating to this Agreement in any New York State or federal
court. The Pledgor hereby irrevocably waives, to the fullest extent
it may effectively do so, the defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court. The
Pledgor irrevocably consents to the service of any and all process
in any such action or proceeding by the mailing of copies of such
process to such Pledgor at its address specified in Section 17. The
Pledgor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by applicable law.
(b) Nothing in this Section 21 shall affect the right of the
Pledgee to serve legal process in any other manner permitted by
applicable law or affect any right which the Pledge would otherwise
have to bring any action or proceeding against the Pledgor or its
property in the courts of any other jurisdiction.
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(c) To the extent that the Pledgor has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise)
with respect to itself or its property, the Pledgor to the extent
permitted by law hereby irrevocably waives such immunity in respect
of its obligations under this Agreement and, without limiting the
generality of the foregoing, agrees that the waives set forth in
this subsection (c) shall have the fullest scope permitted under the
United States Foreign Sovereign Immunities Act of 1976, as amended,
and are intended to be irrevocable for purposes of such Act.
SECTION 22. WAIVER OF JURY TRAIL. EACH OF THE PLEDGOR AND THE PLEDGEE
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ACTIONS OF THE PLEDGEE IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
Section 23. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
Section 24. Severability. If any term or provision of this Agreement is or
shall become illegal, invalid or unenforceable in any jurisdiction, all
other terms and provisions of this Agreement shall remain legal, valid and
enforceable in such jurisdiction and such illegal, invalid or
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unenforceable provision shall be legal, valid and enforceable in any other
jurisdiction.
Section 26. Termination of Prior Agreement. The parties agree that any
prior pledge agreement with respect to the Collateral is terminated as of
the effective date of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
Allied World Assurance Ltd CITIBANK, N.A.
BY: /S/ X.X. Xxxxxx BY: /s/ R. Arch
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Name: X.X. Xxxxxx Name: R. Arch
Title: Vice President/Treasurer Title: Vice President
BY: /s/ X. Xxxxxxx
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Name: X. Xxxxxxx
Title: Assistant Treasurer
ANNEX A
CERTAIN DEFINED TERMS
Capitalized terms used herein shall have the respective meanings ascribed to
them below:
"Collateral" has the meaning specified therefore in Section 2 hereof.
"Entitlement Holder" means a Person that (i) is an "entitlement holder" as
defined in Section 8-102(a)(7) of the NYUCC (except in respect of a Book-entry
Security); and (ii) in respect of any book-entry Security, is an "entitlement
holder" as defined in 31 C.F.R. 357.2 (or, as applicable to such book-entry
Security, the corresponding Federal Book-Entry Regulations governing such
book-entry Security) which, to the extent required or permitted by the Federal
Book-Entry Regulations, is also an "entitlement holder" as defined in Section
8-102(a)(7) of the NYUCC.
"Entitlement Order" shall have the meaning set forth in Section 8-102(a)(8) of
the NYUCC and shall include, without limitation, any notice or related
instructions from the Pledgee directing the transfer or redemption of the
Collateral or any part thereof.
"Federal Book-Entry Regulations" means the federal regulations contained in
Subpart B ("Treasury/Reserve Automated Debt Entry System (TRADES)" governing
book-entry securities consisting of United States Treasury securities, U.S.
Treasury bonds, notes and bills) and Subpart D ("Additional Provisions") of 31
C.F.R. Part 357, 31 C.F.R. 357.10 through 357.14 and 357.41 through 357.44
(including related defined terms in 31 C.F.R. 357.2), as amended by regulations
published at 61 Fed. Reg. 43626 (August 23, 1996) and as amended by an
subsequent regulations.
"Lien" means any mortgage, pledge, attachment, lien, charge, claim, encumbrance,
lease or security interest, easement, right of first or last refusal, right of
first offer or other option or contingent purchase right.
"NYUCC" means the Uniform Commercial Code from time to time in effect in the
State of New York.
"Person" means any individual, corporation, partnership, joint venture,
foundation, association, joint-stock company, trust, unincorporated
organization, government or any political subdivision thereof or any agency or
instrumentality of any thereof.
"Secured Obligations" has the meaning specified therefore in Section 3 hereof.
"Secured Intermediary" means a person that (i) is a "securities intermediary" as
defined in Section 8-102(a)(14) of the NYUCC and (ii) in respect of any U.S.
Government Obligations, is also a "securities intermediary" as defined in 31
C.F.R. 357.2.
"Security Control" means "control" as defined in Section 9-115(1)(e) of the
NYUCC.
"Security Entitlement" means (i) security entitlement" as defined in Section
8-102(a)(17) of the NYUCC (except in respect of a U.S. Government Obligation);
and (ii) in respect of any U.S. Government Obligation, a "security entitlement"
as defined in 31 C.F.R. 357.2 which, to the extent required or permitted by the
Federal Book-Entry Regulations, is also a "security entitlement" as defined in
Section 8-102(a)(17) of the NYUCC.
"STRIPS" shall have the meaning thereof set forth in Section 357.2 of the
Federal Book-Entry Regulations.
"U.S. Government Obligations" means all of the United States Treasury securities
(including STRIPS) maintained in the commercial book-entry system entitled
Treasury/Reserve Automated Debt Entry System ("TRADES") pursuant to the Federal
Book-Entry Regulations or pursuant to a successor system.
(b) NYUCC Terms. Terms defined or referenced in the NYUCC and not otherwise
defined or referenced herein are used herein as therein defined or referenced.
In particular, the following terms are used herein as defined or referenced in
the respective NYUCC sections indicated below: "Account": Section 9-106;
"Entitlement Order": Section 8-102(a)(8); "Financial Asset": Section
8-102(a)(9); "Instrument": Section 9-105(l)(i): "Investment Property": Section
9-115(1)(f); "Person": Section 1-201(30); "Securities Account": Section
8-501(a); "Security": Section 8-102(a)(15).
