EXHIBIT 10.64
QUOTA SHARE RETROCESSION AGREEMENT
BY AND BETWEEN
PLATINUM UNDERWRITERS BERMUDA, LTD.
and
PLATINUM RE (UK) LIMITED
DATED AS OF 26 November, 2002
This Quota Share Retrocession Agreement (this "Agreement"), is made by
and between Platinum Underwriters Bermuda, Ltd., a Bermuda-domiciled insurance
company (the "Retrocessionaire"), and Platinum Re (UK) Limited, a United
Kingdom-domiciled insurance company (the "Retrocedant").
ARTICLE 1 - BUSINESS COVERED
Retrocedant hereby obligates itself to retrocede to the Retrocessionaire and the
Retrocessionaire hereby obligates itself to accept a fifty-five percent (55%)
quota share of the reinsurance and retrocession contracts written by Retrocedant
on or after the Effective Date other than reinsurance contracts retroceded to
Retrocedant by any subsidiary or affiliate of The St. Paul Companies, Inc. (the
"Reinsurance Contracts").
ARTICLE 2 -COMMENCEMENT AND TERMINATION
Subject to Article 14 (Security), this Agreement shall take effect and shall
apply to all in-force new and renewal Reinsurance Contracts as of 12:01 a.m.
London time on the day following receipt by Retrocedant of permission from the
Financial Services Authority under Part IV of the Financial Services and Markets
Act 2000 to conduct reinsurance business in the United Kingdom (the "Effective
Date"). It shall remain continuously in force but may be terminated by either
party giving at least 90 days notice in writing to the other party or by
Retrocedent in accordance with Article 14 (Security).
Unless the Retrocedant elects to reassume the ceded unearned premium in force on
the effective date of termination, and so notifies the Retrocessionaire, the
Retrocessionaire shall remain liable hereunder for its pro rata share of the
Retrocedant's liability under the Reinsurance Contracts until the expiration,
cancellation or termination of all of the Retrocedant's liabilities under the
Reinsurance Contracts.
ARTICLE 3 - ORIGINAL CONDITIONS
All retrocessions assumed under this Agreement shall be subject to the same
rates, terms, conditions, waivers and interpretations, and to the same
modifications and alterations, as the respective Reinsurance Contracts.
This Agreement is solely between the Retrocedant and the Retrocessionaire, and
in no instance shall any other party have any rights under this Agreement except
as expressly provided otherwise in the Insolvency Article.
ARTICLE 4 - PREMIUMS AND COMMISSION
As premium for the reinsurance provided hereunder, the Retrocedant shall
retrocede to the Retrocessionaire fifty-five percent (55%) of the net premium
ceded to the Retrocedant under the Reinsurance Contracts. Net Premium is defined
as Gross Premium ceded to the Retrocedant under the Reinsurance Contracts less:
(1) return premiums, (2) applicable ceding and other commissions, (3) brokerage,
(4) ceded reinsurance premium, (5) taxes, and (6) other expenses associated with
underwriting. Gross Premium is defined as the total sum of all premiums
associated with Reinsurance Contracts ceded to the Retrocedant, before any
deductions.
ARTICLE 5 - TERRITORY
Coverage applies within the territorial limits of the Reinsurance Contracts
covered hereunder.
ARTICLE 6 - INURING REINSURANCE
It is understood and agreed that when the Retrocedant warrants that it is in the
best interest of the Retrocedant and the Retrocessionaire, Retrocedant may
purchase facultative reinsurance and any other treaty reinsurance. The premium
for said inuring reinsurance that inures to the benefit of the Retrocessionaire
will be deducted from the premium hereunder. All reinsurance purchased by the
Retrocedant inures to the benefit of the Retrocessionaire unless specifically
noted in Addendum A.
ARTICLE 7 - LOSS AND LOSS EXPENSE
The Retrocessionaire shall be liable for fifty-five percent (55%) of all loss,
loss adjustment expenses and other payment obligations as incurred by
Retrocedant under the Reinsurance Contracts on and after the Effective Date.
ARTICLE 8 - REPORTS AND REMITTANCES
Within 30 days after the close of each month, the Retrocedant will furnish the
Retrocessionaire with a report summarizing the written premium ceded less return
premium, allowances, commission , premiums for inuring reinsurance, losses paid,
loss adjustment expense paid, monies recovered, and net balance due either
party. In addition, the Retrocedant will furnish the Retrocessionaire a monthly
statement showing the unearned premium, the total reserves for outstanding
losses including loss adjustment expense, a breakdown for paid and outstanding
catastrophe losses and loss adjustment expense, and such other information as
may be required by the Retrocessionaire for completion of its annual statements
or other filings.
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The net balance will be paid within 45 days after the close of the respective
month. Should payment due from the Retrocessionaire exceed (pound)2,000,000 as
respects any one loss, the Retrocedant may give the Retrocessionaire notice of
payment made or its intention to make payment on a certain date. If the
Retrocedant has paid the loss, payment will be made by the Retrocessionaire
immediately. If the Retrocedant intends to pay the loss by a certain date and
has submitted a satisfactory proof of loss or similar document, payment will be
due from the Retrocessionaire twenty-four 24 hours prior to the date, provided
the Retrocessionaire has a period of seven (7) days after receipt of said notice
to dispatch the payment. Cash loss amounts specifically remitted by the
Retrocessionaire as set forth herein will be credited to its next monthly
account.
ARTICLE 9 - ACCESS TO RECORDS
The Retrocessionaire and its designated representatives shall have free access
at any reasonable time to all records of the Retrocedant which pertain in any
way to this Agreement.
ARTICLE 10 - ARBITRATION
All disputes and differences arising under or in connection with this Agreement
shall be referred to arbitration under the Arbitration Rules of the A.I.D.A.
Reinsurance and Insurance Arbitration Society of the UK ("ARIAS (UK)").
The Arbitration Tribunal shall consist of three arbitrators, one to be appointed
by the Claimant, one to be appointed by the Respondent and the third to be
appointed by the two appointed arbitrators.
The third member of the Tribunal shall be appointed as soon as practicable (and
no later than 28 days) after the appointment of the two party-appointed
arbitrators. The Tribunal shall be constituted upon the appointment of the third
arbitrator.
The Arbitrators shall be persons (including those who have retired) with not
less than ten years' experience of insurance or reinsurance within the industry
or as lawyers or other professional advisers serving the industry.
Where a Party fails to appoint an arbitrator within 14 days of being called upon
to do so or where the two party-appointed arbitrators fail to appoint a third
within 28 days of their appointment, then upon application ARIAS (UK) will
appoint an arbitrator to fill the vacancy. At any time prior to appointment by
ARIAS (UK) the Party or arbitrators in default may make such appointment.
The Tribunal may in its sole discretion make such orders and directions as it
considers to be necessary for the final determination of the matters in dispute.
The Tribunal shall have the widest discretion permitted under the law governing
the arbitral procedure when making such order or directions.
The seat of arbitration shall be London.
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ARTICLE 11 - INSOLVENCY
In the event of the insolvency of the Retrocedant, this reinsurance shall be
payable directly to the Retrocedant, or to its liquidator, receiver, conservator
or statutory successor on the basis of the liability of the Retrocedant without
diminution because of the insolvency of the Retrocedant or because the
liquidator, receiver, conservator or statutory successor of the Retrocedant has
failed to pay all or a portion of any claim.
It is agreed, however, that the liquidator, receiver, conservator or statutory
successor of the Retrocedant shall give written notice to the Retrocessionaire
of the pendency of a claim against the Retrocedant indicating the policy or bond
reinsured, which claim would involve a possible liability on the part of the
Retrocessionaire within a reasonable time after such claim is filed in the
conservation or liquidation proceeding or in the receivership, and that during
the pendency of such claim, the Retrocessionaire may investigate such claim and
interpose, at its own expense, in the proceeding where such claim is to be
adjudicated any defense or defenses that it may deem available to the
Retrocedant or its liquidator, receiver, conservator or statutory successor. The
expense thus incurred by the Retrocessionaire shall be chargeable, subject to
the approval of the court, against the Retrocedant as part of the expense of
conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the Retrocedant solely as a result of the defense undertaken
by the Retrocessionaire.
As to all reinsurance made, ceded, renewed or otherwise becoming effective under
this Agreement, the reinsurance shall be payable as set forth above by the
Retrocessionaire to the Retrocedant or to its liquidator, receiver, conservator
or statutory successor, except (1) where the Reinsurance Contracts specifically
provide another payee in the event of the insolvency of the Retrocedant, or (2)
where the Retrocessionaire with the consent of the insured or reinsureds, have
assumed such Reinsurance Contract obligations of the Retrocedant as direct
obligations of the Retrocessionaire to the payees under such Reinsurance
Contracts and in substitution for the obligations of the Retrocedant to such
payees.
ARTICLE 12 - OFFSET
The Retrocedant and the Retrocessionaire shall have the right to offset any
balance or amounts due from one party to the other under the terms of this
Agreement. The party asserting the right of offset may exercise such right at
any time whether the balances due are on account of premiums, losses or
otherwise.
ARTICLE 13 - ERRORS AND OMISSIONS
Any inadvertent delay, omission, error or failure made in connection with this
Agreement shall not relieve either party hereto from any liability which would
attach hereunder if such delay, omission, error or failure had not been made.
ARTICLE 14 - SECURITY
As a condition precedent to this Agreement, Retrocessionaire shall execute:
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A. the custody and investment accounting agreement with State
Street Bank and Trust Company ("Custodian") in the form
attached as Schedule 1 (the "Custody Agreement");
B. the control agreement between Retrocedent, Retrocessionaire
and Custodian in the form attached as Schedule 2 (the "Control
Agreement");
C. the discretionary investment advisory agreement with Alliance
Capital Management L.P. ("Investment Manager") in the form
attached as Schedule 3 (the "Investment Advisory Agreement");
and
D. the security agreement, pursuant to which Retrocessionaire
grants a continuing first priority security interest in
collateral accounts established with Custodian pursuant to the
Custody Agreement, in the form attached as Schedule 4 (the
"Security Agreement").
Retrocessionaire undertakes to notify Retrocedent in writing immediately upon
becoming aware of the occurrence of a Relevant Event under the Security
Agreement. Upon becoming aware of any such Relevant Event, Retrocedent shall be
entitled, upon notice in writing to Retrocessionaire, to terminate this
Agreement with immediate effect. Upon termination, Retrocessionaire shall within
seven days account to Retrocedent for all amounts owing to Retrocedent pursuant
to this Agreement, and the provisions of Article 12 (Offset) shall apply.
No delay by Platinum UK in enforcing its rights under this Agreement or other
forbearance by Platinum UK shall be taken to be a waiver of such rights.
ARTICLE 15 - MISCELLANEOUS PROVISIONS
A. Severability. If any term or provision of this Agreement shall
be held void, illegal, or unenforceable, the validity of the
remaining portions or provisions shall not be affected
thereby.
B. Successors and Assigns. This Agreement may not be assigned by
either party without the prior written consent of the other.
The provisions of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns as
permitted herein.
C. Execution in Counterparts. This Agreement may be executed by
the parties hereto in any number of counterparts and by each
of the parties hereto in separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed
to be an original, but all such counterparts shall together
constitute but one and the same instrument.
D. Headings. Headings used herein are not a part of this
Agreement and shall not affect the terms hereof.
E. Amendments; Entire Agreement. This Agreement may be amended
only by written agreement of the parties. This Agreement
together with the Custody Agreement, the
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Control Agreement, the Investment Advisory Agreement and the
Security Agreement supersede all prior discussions and written
and oral agreements and constitutes the sole and entire
agreement between the parties with respect to the subject
matter hereof.
F. Governing Law. This Agreement shall be governed by the laws of
England.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first
above written.
Platinum Underwriters Bermuda, Ltd.
By: /s/ Barton W. Hedges
---------------------------------------
Name: BARTON W. HEDGES
Title: CHIEF OPERATING OFFICER
Platinum Re (UK) Limited By:
By: /s/ T. Mahoney
---------------------------------------
Name : T. MAHONEY
Title: CEO
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Addendum A
None
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Schedule 1
Custody Agreement
CUSTODIAN AND INVESTMENT ACCOUNTING AGREEMENT
THIS AGREEMENT is made as of _____________, 2002, by and among STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company ("STATE STREET")
and each OF PLATINUM UNDERWRITERS HOLDINGS, LTD., a Bermuda company; PLATINUM
REGENCY HOLDINGS, an Irish holding company; PLATINUM UNDERWRITERS FINANCE, INC.,
a Delaware corporation; PLATINUM UNDERWRITERS BERMUDA, LTD., a Bermuda company;
and PLATINUM RE (UK) LIMITED, a company organized under the laws of England and
Wales (each, a "COMPANY").
WITNESSETH:
WHEREAS, the Company is the owner of certain assets; and
WHEREAS, the Company desires to retain State Street to act as custodian
of such assets, and State Street is willing to provide services to the Company
upon the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties hereto agree as follows:
SECTION 1. EMPLOYMENT OF STATE STREET AND PROPERTY TO BE HELD BY IT.
The Company hereby employs State Street as the custodian of certain assets held
in one or more accounts (collectively, the "ACCOUNT"), including securities
which the Company desires to be held in places within the United States
('DOMESTIC SECURITIES") and securities it desires to be held outside the United
States ("FOREIGN SECURITIES"). State Street shall not be responsible for any
property of the Company not delivered to State Street. State Street shall
maintain separate books and records for the assets of each Company.
Upon receipt of "PROPER INSTRUCTIONS" (as such term is defined in
Section 4 hereof), State Street shall on behalf of the Company from time to time
to employ one or more sub-custodians located in the United States. State Street
may employ as sub-custodian for the Company's foreign securities foreign banking
institutions and foreign securities depositories, but only in accordance with
the applicable provisions of Section 3. State Street shall have no more or less
responsibility or liability to the Company on account of any actions or
omissions of any such subcustodian so employed than any such sub-custodian has
to State Street, provided that State Street has not acted with negligence or
engaged in fraud or willful misconduct in choosing and monitoring such
sub-custodian.
SECTION 2. DUTIES OF STATE STREET WITH RESPECT TO PROPERTY OF THE ACCOUNT
HELD BY STATE STREET IN THE UNITED STATES.
Section 2.1 Holding Securities. State Street shall hold and physically
segregate for the account of the Company all non-cash property, to be held by it
in the United States including all
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domestic securities owned by the Company other than securities which are
maintained pursuant to Section 2.8 in a clearing agency which acts as a
securities depository or in a book-entry system authorized by the U.S.
Department of the Treasury (each, a "U.S. SECURITIES SYSTEM").
Section 2.2 Delivery Of Securities. State Street shall release and
deliver domestic securities of the Account held by State Street or in a U.S.
Securities System account of State Street only upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, and only in the following cases:
1. Upon sale of such securities for the account of the Company
and receipt of payment therefor;
2. Upon the receipt of payment in connection with any repurchase
agreement related to such securities entered into by the
Company;
3. In the case of a sale effected through a U.S. Securities
System, in accordance with the provisions of Section 2.8.
hereof;
4. To the depository agent in connection with tender or other
similar offers for securities of the Account;
5. To the issuer thereof or its agent when such securities are
called, redeemed, retired or otherwise become payable;
provided that, in any such case, the cash or other
consideration is to be delivered to State Street;
6. To the issuer thereof, or its agent for transfer into the name
of the Company or into the name of any nominee or nominees of
State Street or into the name or nominee name of any agent
appointed pursuant to Section 2.7 or into the name or nominee
name of any sub-custodian appointed pursuant to Section 1
provided that where they are not transferred into the name of
the Company that State Street shall reflect in its books and
records that the assets are held on behalf of the Company; or
for exchange for a different number of bonds, certificates or
other evidence representing the same aggregate face amount or
number of units; provided that, in any such case, the new
investments are to be delivered to State Street.
7. Upon the sale of such securities for the account of the
Company, to the broker or its clearing agent, against a
receipt, for examination in accordance with "street delivery"
custom; provided that in any such case, State Street shall
have no responsibility or liability for any loss arising from
the delivery of such securities prior to receiving payment for
such securities except as may arise from State Street's own
negligence or willful misconduct;
8. For exchange or conversion pursuant to any plan of merger,
consolidation, recapitalization, reorganization or
readjustment of the securities of the issuer of such
securities, or pursuant to provisions for conversion contained
in such
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securities, or pursuant to any deposit agreement; provided
that, in any such case, the new securities and cash, if any,
are to be delivered to State Street;
9. In the case of warrants, rights or similar securities, the
surrender thereof in the exercise of such warrants, rights or
similar securities or the surrender of interim receipts or
temporary securities for definitive securities; provided that,
in any such case, the new securities and cash, if any, are to
be delivered to State Street;
10. For delivery in connection with any loans of securities made
by the Company, but only against receipt of adequate
collateral as agreed upon from time to time by State Street
and the Company, which may be in the form of cash or
obligations issued by the United States government, its
agencies or instrumentalities, except that in connection with
any loans for which collateral is to be credited to State
Street's account in the book-entry system authorized by the
U.S. Department of the Treasury, State Street will not be held
liable or responsible for the delivery of securities prior to
the receipt of such collateral;
11. For delivery as security in connection with any borrowings by
the Company requiring a pledge of Account assets, but only
against receipt of amounts borrowed;
12. For delivery in accordance with the provisions of any
agreement among the Company, State Street and a broker-dealer
registered under the Securities Exchange Act of 1934 (the
"EXCHANGE Act") and a member of The National Association of
Securities Dealers, Inc. ("NASD"), relating to compliance with
the rules of The Options Clearing Corporation and of any
registered national securities exchange, or of any similar
organization or organizations, regarding escrow or other
arrangements in connection with transactions by the Company;
13. For delivery in accordance with the provisions of any
agreement among the Company, State Street, and a futures
commission merchant registered under the Commodity Exchange
Act, relating to compliance with the rules of the Commodity
Futures Trading Commission ("CFTC") and/or any contract
market, or any similar organization or organizations,
regarding deposits in connection with transactions by the
Company;
14. For any other purpose, but only upon receipt of Proper
Instructions from the Company, specifying the securities to be
delivered, setting forth the purpose for which such delivery
is to be made, and naming the person or persons to whom
delivery of such securities shall be made.
Section 2.3 Registration Of Securities. Domestic securities held by
State Street (other than bearer securities) shall be registered in the name of
the Company or in the name of any nominee of the Company or of any nominee of
State Street which nominee shall be assigned exclusively with respect to the
Account, or in the name or nominee name of any agent appointed
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pursuant to Section 2.7 or in the name or nominee name of any sub-custodian
appointed pursuant to Section 1. All securities accepted by State Street on
behalf of the Company under the terms of this Agreement shall be in "street
name" or other good delivery form. If, however, the Company directs State Street
to maintain Account securities in "street name," State Street shall use
reasonable efforts only to timely collect income due to the Company on such
securities and to notify the Company of relevant corporate actions including,
without limitation, pendency of calls, maturities, tender or exchange offers.
Section 2.4 Bank Accounts. State Street shall open and maintain a
separate bank account or accounts in the United States in the name of the
Company, subject only to draft or order by State Street acting pursuant to the
terms of this Agreement on behalf of the Company, and shall hold in such account
or accounts, subject to the provisions hereof, all cash received by it from or
for the Account. Funds held by State Street for the Account may be deposited by
State Street to its credit as custodian in the banking department of State
Street or in such other banks or trust companies as it may in its discretion
deem necessary or desirable. Such funds shall be deposited by State Street in
its capacity as custodian and shall be withdrawable by State Street only in that
capacity.
Section 2.5 Collection Of Income. Subject to the provisions of Section
2.3, State Street shall collect on a timely basis all income and other payments
with respect to registered domestic securities held hereunder to which the
Company shall be entitled either by law or pursuant to custom in the securities
business, and shall collect on a timely basis all income and other payments with
respect to bearer domestic securities if, on the date of payment by the issuer,
such securities are held by State Street or its agent, and shall credit such
income, as collected, to the Account. Without limiting the generality of the
foregoing, State Street shall detach and present for payment all coupons and
other income items requiring presentation as and when they become due and shall
collect interest when due on securities held hereunder. Income due on securities
loaned pursuant to the provisions of Section 2.2(10) shall be the responsibility
of the Company. State Street will have no duty or responsibility in connection
therewith, other than to provide the Company with such information or data as
may be necessary to assist the Company in arranging for the timely delivery to
State Street of the income to which the Company is properly entitled.
Section 2.6 Payment Of Account Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, State Street shall pay out monies in the following cases only:
1. Upon the purchase of domestic securities, options, futures
contracts or options on futures contracts for the Account, but
only (a) against the delivery of such securities or evidence
of title to such options, futures contracts or options on
futures contracts to State Street (or any bank, banking firm
or trust company doing business in the United States or abroad
as a custodian which has been designated by State Street as
its agent for this purpose) registered in the name of the
Company or in the name of a nominee of the Company or of State
Street referred to in Section 2.3 hereof or in proper form for
transfer; (b) in the case of a purchase
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effected through a U.S. Securities System, in accordance with
the conditions set forth in Section 2.8 hereof; (c) in the
case of repurchase agreements entered into between the Company
and State Street, or another bank, or a broker-dealer which is
a member of NASD, (i) against delivery of the securities
either in certificate form or through an entry crediting State
Street's account at the Federal Reserve Bank with such
securities or (ii) against delivery of the receipt evidencing
purchase by the Company of securities owned by State Street
along with written evidence of the agreement by State Street
to repurchase such securities from the Company; or (d) for
transfer to a time deposit account of the Company in any bank,
whether domestic or foreign; such transfer may be effected
prior to receipt of a confirmation from a broker and/or the
applicable bank pursuant to Proper Instructions from the
Company as defined herein;
2. In connection with conversion, exchange or surrender of
securities as set forth in Section 2.2 hereof;
3. For the payment of any expense or liability incurred by the
Company, including but not limited to the following payments
for the Account: interest, taxes, management, accounting,
transfer agent and legal fees, and operating expenses thereof
whether or not such expenses are to be in whole or part
capitalized or treated as deferred expenses;
4. For payment of the amount of dividends received in respect of
securities sold short;
5. For any other purpose, but only upon receipt of Proper
Instructions from the Company specifying the amount of such
payment and naming the person or persons to whom such payment
is to be made.
Section 2.7 Appointment Of Agents. State Street may at any time or
times in its discretion appoint (and may at any time remove) any other bank or
trust company as its agent to carry out such of the provisions of this Section 2
as State Street may from time to time direct; provided, however, that the
appointment of any agent shall not relieve State Street of its responsibilities
or liabilities hereunder.
Section 2.8 Deposit Of Account Assets In U.S. Securities Systems. State
Street may deposit and/or maintain securities of the Account in a U.S.
Securities System subject to the following provisions:
1. State Street may keep securities of the Company in a U.S.
Securities System provided that such securities are
represented in an account of State Street in the U.S.
Securities System ("U.S. SECURITIES SYSTEM ACCOUNT"} which
account shall not include any assets of State Street other
than assets held as a fiduciary, custodian or otherwise for
customers;
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2. The records of State Street with respect to securities of the
Company which are maintained in a U.S. Securities System shall
identify by book-entry those securities belonging to the
Company;
3. State Street shall pay for securities purchased for the
Account upon (a) receipt of advice from the U.S. Securities
System that such securities have been transferred to the U.S.
Securities System Account, and (b) the making of an entry on
the records of State Street to reflect such payment and
transfer for the Account. State Street shall transfer
securities sold for the Account upon (a) receipt of advice
from the U.S. Securities System that payment for such
securities has been transferred to the U.S. Securities System
Account, and (b) the making of an entry on the records of
State Street to reflect such transfer and payment for the
Account. Copies of all advices from the U.S. Securities System
of transfers of securities for the Account shall identify the
Company, be maintained for the Company by State Street and be
provided to the Company at its request. Upon request, State
Street shall furnish the Company confirmation of each transfer
to or from the Account in the form of a written advice or
notice and shall furnish to the Company copies of daily
transaction sheets reflecting each day's transactions in the
U.S. Securities System with respect to the Account;
4. State Street shall provide the Company with any report
obtained by State Street on the U.S. Securities System's
accounting system, internal accounting control and procedures
for safeguarding securities deposited in the U.S. Securities
System;
5. Anything to the contrary in this Agreement notwithstanding,
State Street shall be liable to the Company for any loss or
damage to the Company resulting from use of the U.S.
Securities System by reason of any negligence, misfeasance or
misconduct of State Street or any of its agents or of any of
its or their employees or from failure of State Street or any
such agent to enforce effectively such rights as it may have
against the U.S. Securities System; at the election of the
Company, it shall be entitled to be subrogated to the rights
of State Street with respect to any claim against the U.S.
Securities System or any other person which State Street may
have as a consequence of any such loss or damage if and to the
extent that the Company has not been made whole for any such
loss or damage.
Section 2.9 Segregated Account. State Street shall upon receipt of
Proper Instructions establish and maintain a segregated account or accounts for
and on behalf of the Company, into which account or accounts shall be
transferred cash and/or securities, including securities maintained in an
account by State Street pursuant to Section 2.8 hereof (a) in accordance with
the provisions of any agreement among the Company, State Street and a
broker-dealer registered under the Exchange Act and a member of the NASD (or any
futures commission merchant registered under the Commodity Exchange Act),
relating to compliance with the rules of The Options Clearing Corporation and of
any registered national securities exchange (or the CFTC or any registered
contract market), or of any similar organization or organizations, regarding
escrow or other arrangements in connection with transactions by the Company, (b)
for purposes of
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segregating cash or government securities in connection with options purchased
or sold by the Company or commodity futures contracts or options thereon
purchased or sold by the Company, and (c) for any other purpose upon receipt of
Proper Instructions from the Company.
Section 2.10 Ownership Certificates for Tax Purposes. State Street
shall execute ownership and other certificates and affidavits for all federal
and state tax purposes in connection with receipt of income or other payments
with respect to domestic securities of the Account held by it and in connection
with transfers of securities.
Section 2.11 Proxies. State Street shall, with respect to the domestic
securities held by it hereunder, cause to be promptly executed by the registered
holder of such securities, if the securities are registered otherwise than in
the name of the Company or a nominee of the Company, all proxies without
indication of the manner in which such proxies are to be voted, and shall
promptly deliver to the Company such proxies, all proxy soliciting materials and
all notices received relating to such securities.
Section 2.12 Communications Relating To Securities. Subject to the
provisions of Section 2.3, State Street shall transmit promptly to the Company
all written information (including, without limitation, pendency of calls and
maturities of domestic securities and expirations of rights in connection
therewith and notices of exercise of call and put options written by the Company
and the maturity of futures contracts purchased or sold by the Company) received
by State Street from issuers of the securities being held for the Company. With
respect to tender or exchange offers, State Street shall transmit promptly to
the Company all written information received by State Street from issuers of the
securities whose tender or exchange is sought and from the party (or its agents)
making the tender or exchange offer. If the Company desires to take action with
respect to any tender offer, exchange offer or any other similar transaction,
the Company shall notify State Street at least three business days prior to the
date on which State Street is to take such action.
SECTION 3. DUTIES OF STATE STREET WITH RESPECT TO PROPERTY OF THE ACCOUNT
HELD OUTSIDE THE UNITED STATES.
Section 3.1 Definitions. As used throughout this Agreement, the
following capitalized terms shall have the indicated meanings:
"FOREIGN ASSETS" means any of the Company's investments (including foreign
currencies) for which the primary market is outside the United States and such
cash and cash equivalents as are reasonably necessary to effect the Company's
transactions in such investments.
"FOREIGN SECURITIES SYSTEM" means a system for the central handling of
securities or equivalent book-entries in the country where it is incorporated,
or a transnational system for the central handling of securities or equivalent
book-entries.
7
"FOREIGN SUB-CUSTODIAN' means a foreign banking institution, including a
majority-owned or indirect subsidiary of a United States bank, bank holding
company, or a foreign branch of a United States bank.
Section 3.2 Holding Securities. State Street shall identify on its
books as belonging to the Company the foreign securities held by each Foreign
Sub-Custodian or Foreign Securities System. State Street may hold foreign
securities for all of its customers, including the Company, with any Foreign
Sub-Custodian in an account that is identified as belonging to State Street for
the benefit of its customers, provided however, that (a) the records of State
Street with respect to foreign securities of the Company which are maintained in
such account shall identify those securities as belonging to the Company and
(b), to the extent permitted and customary in the market in which the account is
maintained, State Street shall require that securities so held by the Foreign
Sub-Custodian be held separately from any assets of such Foreign Sub-Custodian
or of other customers of such Foreign Sub-Custodian.
Section 3.3 Foreign Securities Systems. Foreign securities shall be
maintained in a Foreign Securities System in a designated country through
arrangements implemented by State Street or a Foreign Sub-Custodian, as
applicable, in such country.
Section 3.4 Transactions in Foreign Custody Account.
3.4.1 Delivery of Foreign Assets. State Street or a Foreign
Sub-Custodian shall release and deliver foreign securities of the Company held
by State Street or such Foreign Sub-Custodian, or in a Foreign Securities System
account, only upon receipt of Proper Instructions, which may be continuing
instructions when deemed appropriate by the parties, and only in the following
cases:
(i) upon the sale of such foreign securities for the Company in
accordance with commercially reasonable market practice in the
country where such foreign securities are held or traded,
including, without limitation: (A) delivery against
expectation of receiving later payment; or (B) in the case of
a sale effected through a Foreign Securities System, in
accordance with the rules governing the operation of the
Foreign Securities System;
(ii) in connection with any repurchase agreement related to foreign
securities;
(iii) to the depository agent in connection with tender or other
similar offers for foreign securities of the Company;
(iv) to the issuer thereof or its agent when such foreign
securities are called, redeemed, retired or otherwise become
payable;
(v) to the issuer thereof, or its agent, for transfer into the
name of State Street (or the name of the respective Foreign
Sub-Custodian or of any nominee of State Street or such
Foreign Sub-Custodian) or for exchange for a different number
of bonds,
8
certificates or other evidence representing the same aggregate
face amount or number of units;
(vi) to brokers, clearing banks or other clearing agents
for examination or trade execution in accordance with
market custom; provided that in any such case the
Foreign Sub-Custodian shall have no responsibility or
liability for any loss arising from the delivery of
such securities prior to receiving payment for such
securities except as may arise from the Foreign
Sub-Custodian's own negligence or willful misconduct;
(vii) for exchange or conversion pursuant to any plan of
merger, consolidation, recapitalization,
reorganization or readjustment of the securities of
the issuer of such securities, or pursuant to
provisions for conversion contained in such
securities, or pursuant to any deposit agreement;
(viii) in the case of warrants, rights or similar foreign
securities, the surrender thereof in the exercise of
such warrants, rights or similar securities or the
surrender of interim receipts or temporary securities
for definitive securities;
(ix) for delivery as security in connection with any
borrowing by the Company requiring a pledge of assets
by the Company;
(x) in connection with trading in options and futures
contracts, including delivery as original margin and
variation margin;
(xi) in connection with the lending of foreign securities;
and
(xii) for any other purpose, but only upon receipt of
Proper Instructions specifying the foreign securities
to be delivered and naming the person or persons to
whom delivery of such securities shall be made.
3.4.2 Payment of Fund Monies. Upon receipt of Proper
Instructions, which may be continuing instructions when deemed appropriate by
the parties, State Street shall pay out, or direct the respective Foreign
Sub-Custodian or the respective Foreign Securities System to pay out, monies of
the Company in the following cases only:
(i) upon the purchase of foreign securities for the
Company, unless otherwise directed by Proper
Instructions, by (A) delivering money to the seller
thereof or to a dealer therefor (or an agent for such
seller or dealer) against expectation of receiving
later delivery of such foreign securities; or (B) in
the case of a purchase effected through a Foreign
Securities System, in accordance with the rules
governing the operation of such Foreign Securities
System;
(ii) in connection with the conversion, exchange or
surrender of foreign securities of the Company;
9
(iii) for the payment of any expense or liability of the
Company, including but not limited to the following
payments: interest, taxes, investment advisory fees,
transfer agency fees, fees under this Agreement,
legal fees, accounting fees, and other operating
expenses;
(iv) for the purchase or sale of foreign exchange or
foreign exchange contracts for the Company, including
transactions executed with or through State Street or
its Foreign Sub-Custodians;
(v) in connection with trading in options and futures
contracts, including delivery as original margin and
variation margin;
(vi) for payment of part or all of the dividends received
in respect of securities sold short;
(vii) in connection with the borrowing or lending of
foreign securities; and
(viii) for any other purpose, but only upon receipt of
Proper Instructions specifying the amount of such
payment and naming the person or persons to whom such
payment is to be made.
3.4.3 Market Conditions. Notwithstanding any provision of this
Agreement to the contrary, settlement and payment for Foreign Assets received
for the account of the Company and delivery of Foreign Assets maintained for the
account of the Company may be effected in accordance with the customary
established securities trading or processing practices and procedures in the
country or market in which the transaction occurs, including, without
limitation, delivering Foreign Assets to the purchaser thereof or to a dealer
therefor (or an agent for such purchaser or dealer) with the expectation of
receiving later payment for such Foreign Assets from such purchaser or dealer.
State Street shall provide to the Company from time to time information with
respect to custody and settlement practices in countries in which State Street
employs a Foreign Sub-Custodian.
Section 3.5 Registration of Foreign Securities. The foreign securities
maintained in the custody of a Foreign Sub-Custodian (other than bearer
securities) shall be registered in the name of the Company or in the name of
State Street or in the name of any Foreign Sub-Custodian or in the name of any
nominee of the foregoing, and the Company agrees to hold any such nominee
harmless from any liability as a holder of record of such foreign securities.
State Street or a Foreign Sub-Custodian shall not be obligated to accept
securities on behalf of the Company under the terms of this Agreement unless the
form of such securities and the manner in which they are delivered are in
accordance with reasonable market practice.
Section 3.6 Bank Accounts. State Street shall identify on its books as
belonging to the Company cash (including cash denominated in foreign currencies)
deposited with State Street.
10
Where State Street is unable to maintain, or market practice does not facilitate
the maintenance of, cash on the books of State Street, a bank account or bank
accounts shall be opened and maintained outside the United States on behalf of
the Company with a Foreign Sub-Custodian. All accounts referred to in this
Section shall be subject only to draft or order by State Street (or, if
applicable, such Foreign Sub-Custodian) acting pursuant to the terms of this
Agreement on behalf of the Company to hold cash received by or from or for the
account of the Company. Cash maintained on the books of State Street (including
its branches, subsidiaries and affiliates), regardless of currency denomination,
is maintained in bank accounts established under, and subject to the laws of,
The Commonwealth of Massachusetts.
Section 3.7 Collection of Income. State Street shall use reasonable
commercial efforts to collect all income and other payments with respect to the
Foreign Assets held hereunder to which the Company shall be entitled and shall
credit such income, as collected, to the Company. In the event that
extraordinary measures are required to collect such income, the Company and
State Street shall consult as to such measures and as to the compensation and
expenses of State Street relating to such measures.
Section 3.8 Shareholder Rights. With respect to the foreign securities
held pursuant to this Section 3, State Street will use reasonable commercial
efforts to facilitate the exercise of voting and other shareholder rights,
subject always to the laws, regulations and practical constraints that may exist
in the country where such securities are issued. The Company acknowledges that
local conditions, including lack of regulation, onerous procedural obligations,
lack of notice and other factors may have the effect of severely limiting the
ability of the Company to exercise shareholder rights.
Section 3.9 Communications Relating to Foreign Securities. State Street
shall transmit promptly to the Company written information with respect to
materials received by State Street via the Foreign Sub-Custodians from issuers
of the foreign securities being held for the account of the Company (including,
without limitation, pendency of calls and maturities of foreign securities and
expirations of rights in connection therewith). With respect to tender or
exchange offers, State Street shall transmit promptly to the Company written
information with respect to materials so received by State Street from issuers
of the foreign securities whose tender or exchange is sought or from the party
(or its agents) making the tender or exchange offer. State Street shall not be
liable for any untimely exercise of any tender, exchange or other right or power
in connection with foreign securities or other property of the Company at any
time held by it unless (i) State Street or the respective Foreign Sub-Custodian
is in actual possession of such foreign securities or property and (ii) State
Street receives Proper Instructions with regard to the exercise of any such
right or power, and both (i) and (ii) occur at least three business days prior
to the date on which State Street is to take action to exercise such right or
power.
Section 3.10 Liability of Foreign Sub-Custodians. Each agreement
pursuant to which State Street employs a Foreign Sub-Custodian shall, to the
extent possible, require the Foreign Sub-Custodian to exercise reasonable care
in the performance of its duties, and to indemnify, and hold harmless, State
Street from and against any loss, damage, cost, expense, liability or claim
arising out of or in connection with the Foreign Sub-Custodian's performance of
such
11
obligations. At the Company's election, it shall be entitled to be subrogated to
the rights of State Street with respect to any claims against a Foreign
Sub-Custodian as a consequence of any such loss, damage, cost, expense,
liability or claim if and to the extent that the Company has not been made whole
for any such loss, damage, cost, expense, liability or claim.
Section 3.11 Tax Law. State Street shall have no responsibility or
liability for any obligations now or hereafter imposed on the Company or State
Street as custodian for the Company by the tax law of the United States or of
any state or political subdivision thereof. It shall be the responsibility of
the Company to notify State Street of the obligations imposed on the Company or
State Street as custodian for the Company by the tax law of countries other than
those mentioned in the above sentence, including responsibility for withholding
and other taxes, assessments or other governmental charges, certifications and
governmental reporting. The sole responsibility of State Street with regard to
such tax law shall be to use reasonable efforts to assist the Company with
respect to any claim for exemption or refund under the tax law of countries for
which the Company has provided such information.
Section 3.12 Liability of State Street. State Street shall be liable
for the acts or omissions of a Foreign Sub-Custodian to the same extent as set
forth with respect to subcustodians generally in the Contract and, regardless of
whether assets are maintained in the custody of a Foreign Sub-Custodian or a
Foreign Securities System, State Street shall not be liable for any loss,
damage, cost, expense, liability or claim resulting from nationalization,
expropriation, currency restrictions, or acts of war or terrorism, or any other
loss where the Sub-Custodian has otherwise acted with reasonable care.
SECTION 4. PROPER INSTRUCTIONS.
Proper Instructions as used throughout this Agreement means a writing signed or
initialed by one or more of such persons as the Company shall have from time to
time authorized. Each such writing shall set forth the specific transaction or
type of transaction involved, including a specific statement of the purpose for
which such action is requested. Oral instructions will be considered Proper
Instructions if State Street reasonably believes them to have been given by a
person authorized to give such instructions with respect to the transaction
involved. The Company shall cause all oral instructions to be confirmed in
writing. Proper Instructions may include communications effected directly
between electro-mechanical or electronic devices, provided that the Company and
State Street agree to security procedures, including but not limited to, the
security procedures selected by the Company in the Funds Transfer Operating
Guidelines attached hereto. Proper Instructions may also include joint
instructions as described in the Control Agreement by and among Platinum
Underwriters Bermuda, Ltd.; Platinum Re (UK) Limited; and State Street but only
when the instructions relate to the Collateral Accounts established under the
Control Agreement.
SECTION 5. ACTIONS PERMITTED WITHOUT EXPRESS AUTHORITY.
State Street may in its discretion, without express authority from the Company:
12
1. Make payments to itself or others for minor expenses
of handling securities or other similar items
relating to its duties under this Agreement, provided
that all such payments shall be accounted for to the
Company;
2. Surrender securities in temporary form for securities
in definitive form;
3. Endorse for collection, in the name of the Company,
checks, drafts and other negotiable instruments; and
4. In general, attend to all non-discretionary details
in connection with the sale, exchange, substitution,
purchase, transfer and other dealings with the
securities and property of the Account except as
otherwise directed by the Company.
SECTION 6. EVIDENCE OF AUTHORITY.
State Street shall be protected in acting upon any instructions, notice,
request, consent, certificate or other instrument or paper reasonably believed
by it to be genuine and to have been properly executed by or on behalf of the
Company. State Street may receive and accept a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company ('CERTIFIED RESOLUTION")
as conclusive evidence (a) of the authority of any person to act in accordance
with such resolution or (b) of any determination or of any action by the Company
as described in such resolution, and such resolution may be considered as in
full force and effect until receipt by State Street of written notice to the
contrary.
SECTION 7. DUTIES WITH RESPECT TO ACCOUNTS AND RECORDS AND VALUATION OF
ASSETS.
Section 7.1 Accounts and Records. State Street will prepare and
maintain, under the direction of and as interpreted by Company, Company's
accountants and/or other advisors, in complete, accurate and current form
certain accounts and records with respect to portfolio transactions and as set
forth on Exhibit A hereto, and as otherwise agreed upon by the parties. Company
will advise State Street in writing of all applicable record retention
requirements. State Street will preserve such accounts and records during the
term of this Agreement in the manner and for the periods agreed upon by the
parties. Company will furnish, in writing or its electronic or digital
equivalent, accurate and timely information needed by State Street to complete
such accounts and records when such information is not readily available from
generally accepted securities industry services or publications.
Section 7.2 Delivery of Accounts and Records. Company will turn over or
cause to be turned over to State Street all accounts and records needed by State
Street to perform its duties and responsibilities hereunder fully and properly.
State Street may rely conclusively on the completeness and correctness of such
accounts and records.
Section 7.3 Accounts and Records Property of Company. State Street
acknowledges that all of the accounts and records maintained by State Street
pursuant hereto are the property of Company, and will be made available to
Company for inspection or reproduction within a
13
reasonable period of time, upon demand. State Street will assist Company's
independent auditors, or upon the prior written approval of Company, or upon
demand, any regulatory body, in any requested review of Company's accounts and
records, provided that Company will reimburse State Street for all expenses and
employee time invested in any such review outside of routine and normal periodic
reviews. Upon receipt from Company of the necessary information or instructions,
State Street will supply information from the books and records it maintains for
Company that Company may reasonably request for tax returns, questionnaires,
periodic reports to shareholders and such other reports and information requests
as Company and State Street may agree upon from time to time.
Section 7.4 Valuation of Assets. State Street will value the Assets of
the Account in accordance with Company's Proper Instructions utilizing the
information sources designated by Company ("PRICING SOURCES") on the Price
Source and Methodology Authorization Matrix, incorporated herein by this
reference.
SECTION 8. RECORDS.
State Street shall, at the Company's request, supply the Company with a
tabulation of securities owned by the Company and held by State Street and
shall, when requested to do so by the Company and for such compensation as shall
be agreed upon between the Company and State Street, include certificate numbers
in such tabulations. State Street may create and maintain additional records
relating to its activities and obligations under this Agreement in such manner
as shall be agreed between State Street and the Company.
SECTION 9. REPORTS TO COMPANY BY INDEPENDENT PUBLIC ACCOUNTANTS.
State Street shall provide the Company, at such times as the Company may
reasonably require, with reports by independent public accountants on the
accounting system, internal accounting control and procedures for safeguarding
securities, futures contracts and options on futures contracts, including
securities deposited and/or maintained in a U.S. Securities System or a Foreign
Securities System, relating to the services provided by State Street under this
Agreement; such reports, shall be of sufficient scope and in sufficient detail,
as may reasonably be required by the Company to provide reasonable assurance
that any material inadequacies would be disclosed by such examination, and, if
there are no such inadequacies, the reports shall so state.
SECTION 10. COMPENSATION OF STATE STREET.
State Street shall be entitled to compensation for its services and expenses in
accordance with Schedule A hereto for the term of this Agreement.
SECTION 11. RESPONSIBILITY OF STATE STREET.
So long as and to the extent that it is in the exercise of reasonable care,
State Street shall not be responsible for the title, validity or genuineness of
any property or evidence of title thereto received by it or delivered by it
pursuant to this Agreement and shall be held harmless in acting
14
upon any notice, request, consent, certificate or other instrument reasonably
believed by it to be genuine and to be signed by the proper party or parties,
including any futures commission merchant acting pursuant to the terms of a
three-party futures or options agreement. State Street shall be held to the
exercise of reasonable care in carrying out the provisions of this Agreement,
but shall be kept indemnified by and shall be without liability to the Company
for any action taken or omitted by it in good faith without negligence,
including, without limitation, acting in accordance with any Proper Instruction.
It shall be entitled to rely on and may act upon advice of counsel (who may be
counsel for the Company) on all matters, and shall be without liability for any
action reasonably taken or omitted pursuant to such advice. State Street shall
be without liability to the Company for any loss, liability, claim or expense
resulting from or caused by any factors reasonably related to the systemic risk
of holding foreign assets in a particular country including, but not limited to,
such country's political environment, economic and financial infrastructure
(including any Foreign Securities System operating in the country), prevailing
or developing custody and settlement practices, and laws and regulations
applicable to the safekeeping and recovery of foreign assets held in custody in
that country.
Except as may arise from State Street's own negligence or willful misconduct or
the negligence or willful misconduct of a sub-custodian or agent, State Street
shall be without liability to the Company for any loss, liability, claim or
expense resulting from or caused by: (a) events or circumstances beyond the
reasonable control of State Street or any sub-custodian or Securities System or
any agent or nominee of any of the foregoing, including, without limitation, the
interruption, suspension or restriction of trading on or the closure of any
securities market, power or other mechanical or technological failures or
interruptions, computer viruses or communications disruptions, work stoppages,
natural disasters, or other similar events or acts; (b) errors by the Company or
its duly-authorized investment manager or investment advisor in their
instructions to State Street provided such instructions have been given in
accordance with this Agreement; (c) the insolvency of or acts or omissions by a
Securities System; (d) any delay or failure of any broker, agent or
intermediary, central bank or other commercially prevalent payment or clearing
system to deliver to State Street's sub-custodian or agent securities purchased
or in the remittance or payment made in connection with securities sold; (e) any
delay or failure of any company, corporation, or other body in charge of
registering or transferring securities in the name of State Street, the Company,
State Street's sub-custodians, nominees or agents or any consequential losses
arising out of such delay or failure to transfer such securities including
non-receipt of bonus, dividends and rights and other accretions or benefits; (f)
delays or inability to perform its duties due to any disorder in market
infrastructure with respect to any particular security or Securities System; and
(g) any provision of any present or future law or regulation or order of the
United States of America, or any state thereof, or any other country, or
political subdivision thereof or of any court of competent jurisdiction.
State Street shall be liable for the acts or omissions of a Foreign
Sub-custodian hereunder to the same extent as set forth with respect to
sub-custodians generally in this Agreement.
If the Company requires State Street to take any action with respect to
securities, which action involves the payment of money or which action may, in
the opinion of State Street, result in State Street or its nominee assigned to
the Company being liable for the payment of money or
15
incurring liability of some other form, the Company, as a prerequisite to
requiring State Street to take such action, shall provide indemnity to State
Street in an amount and form satisfactory to it.
If the Company requires State Street, its affiliates, subsidiaries or agents, to
advance cash or securities for any purpose (including but not limited to
securities settlements, foreign exchange contracts and assumed settlement) or in
the event that State Street or its nominee shall incur or be assessed any taxes,
charges, expenses, assessments, claims or liabilities in connection with the
performance of this Agreement, except such as may arise from its or its
nominee's own negligent action, negligent failure to act or willful misconduct,
any property at any time held for the account of the Company shall be security
therefor and should the Company fail to repay State Street promptly, State
Street shall be entitled to utilize available cash and to dispose of the
Company's assets to the extent necessary to obtain reimbursement.
In no event shall State Street be liable for indirect, special or consequential
damages.
SECTION 12. TERM AND TERMINATION.
This Agreement shall become effective as of the date first above written. The
initial term of this Agreement is for a period of three (3) years. Thereafter,
either Company or State Street may terminate this Agreement by notice in
writing, delivered or mailed, postage prepaid, to the other party and received
not less than ninety (90) days prior to the date upon which such termination
will take effect. Upon termination hereof:
1. Company shall (a) pay to State Street such compensation as may
be due as of the date of such termination and shall likewise
reimburse State Street for its costs, expenses and
disbursements, (b) designate a successor recordkeeper (which
may be Company) by Proper Instruction; and (c) designate a
successor custodian (which may be Company) by Proper
Instruction.
2. Upon payment of all sums due to it from Company, State Street
shall (a) deliver all accounts and records to the successor
recordkeeper (or, if none, to Company) at the office of State
Street; and (b) deliver to the successor custodian at the
office of State Street, duly endorsed and in the form for
transfer, all Assets of Company then held by it hereunder and
shall transfer to an account of the successor custodian all of
the Assets of Company held in any Securities System.
In the event that no successor custodian has been designated on or before the
date when such termination shall become effective, then State Street shall have
the right to deliver to a bank or trust company, which is a bank doing business
in the United States (including any state) of its own selection and having an
aggregate capital, surplus, and undivided profits, as shown by its last
published report, of not less than $10,000,000 all Assets held by State Street,
its agents or its subcustodians on behalf of Company and all instruments held by
State Street, its agents or its subcustodians relative thereto and all other
property held by it hereunder and to transfer to an account of such successor
custodian all of the Assets held in any Securities System. Thereafter, such bank
or trust company shall be the successor of State Street hereunder.
16
In the event that Assets remain in the possession of State Street after the date
of termination hereof owing to failure of Company to designate a successor
custodian, State Street shall be entitled to fair compensation for its services
during such period as State Street retains possession of such Assets, and the
provisions hereof relating to the duties and obligations of State Street as
custodian shall remain in full force and effect. In the event that accounts and
records remain in the possession of State Street after the date of termination
hereof for any reason other than State Street's failure to deliver the same,
State Street shall be entitled to compensation for storage thereof during such
period, and shall be entitled to destroy the same if not removed by Company
within twenty (20) days after written demand.
SECTION 13. AMENDMENT.
This Agreement may be amended by written agreement signed by the Company and
State Street at any time or from time to time.
SECTION 14. INTERPRETIVE AND ADDITIONAL PROVISIONS.
In connection with the operation of this Agreement, State Street and the Company
may from time to time agree on such provisions interpretive of or in addition to
the provisions of this Agreement as may in their joint opinion be consistent
with the general tenor of this Agreement. Any such interpretive or additional
provisions shall be in a writing signed by both parties and shall be annexed
hereto, provided that no such interpretive or additional provisions shall
contravene any applicable federal or state regulations. No interpretive or
additional provisions made as provided in the preceding sentence shall be deemed
to be an amendment of this Agreement.
SECTION 15. MASSACHUSETTS LAW TO APPLY.
This Agreement shall be construed and the provisions thereof interpreted under
and in accordance with laws of The Commonwealth of Massachusetts.
SECTION 16. PRIOR AGREEMENTS.
This Agreement supersedes and terminates, as of the date hereof, all prior
Agreements between the Company and State Street relating to the custody of the
Company's assets.
SECTION 17. NOTICES.
Any notice, instruction or other instrument required to be given hereunder may
be delivered in person to the offices of the parties as set forth herein during
normal business hours or delivered prepaid registered mail or by telex, cable or
telecopy to the parties at the following addresses or such other addresses as
may be notified by any party from time to time.
17
1. To the Company: Platinum Underwriters Holdings, Ltd.
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Rider 17A
Attention: Dawna L. Ferguson
Telephone: 441-295-5950
Facsimile: 441-292-4720
Platinum Underwriters Bermuda, Ltd.
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Attention: Dawna L. Ferguson
Telephone: 441-295-5950
Facsimile: 441-292-4720
Platinum Regency Holdings
Goodbody Secretarial Limited
International Financial Services Centre
25/28 North Wall Quay, Dublin 1
Ireland
Attention: Sarah Cleary
Telephone: 011-353-1-649-2000
Facsimile: 011-353-1-649-2649
Platinum Re (UK) Limited
52 Lime Street
London EC3M 7NL
UK
Attention: Guy Butler
Telephone: 011-44-207-220-8100
Facsimile: 011-44-207-623-6610
Platinum Underwriters Finance, Inc.
195 Broadway, 28th Floor
New York,NY 10007
Attention: Michael E. Lombardozzi
Telephone: 212-238-9547
Facsimile: 212-809-7565
18
2. To State Street: State Street Bank and Trust Company
801 Pennsylvania Avenue
Kansas City, MO 64105
Attention: Vice President,Insurance
Services
Telephone: (816)871-4100
Facsimile: (816)871-9675
Such notice, instruction or other instrument shall be deemed to have been served
in the case of a registered letter at the expiration of five business days after
posting, in the case of cable twenty-four hours after dispatch and, in the case
of telex, immediately on dispatch and if delivered outside normal business hours
it shall be deemed to have been received at the next time after delivery when
normal business hours commence and in the case of cable, telex or telecopy on
the business day after the receipt thereof. Evidence that the notice was
properly addressed, stamped and put into the post shall be conclusive evidence
of posting.
SECTION 18. REPRODUCTION OF DOCUMENTS.
This Agreement and all schedules, exhibits, attachments and amendments hereto
may be reproduced by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process. The parties hereto each agree
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SECTION 19. REMOTE ACCESS SERVICES ADDENDUM.
State Street and the Company agree to be bound by the terms of the Remote Access
Services Addendum attached hereto.
SECTION 20. ASSIGNMENT.
Neither this Agreement nor any rights or obligations hereunder may be assigned
by either party, whether voluntarily, involuntarily or by operation of law,
without the prior written consent of the other, such consent not to be
unreasonably withheld, except to entities controlled by, under common control
with or controlling the assigning party, provided that such assignee has
financial capacity at least equal to that of the assignor.
SECTION 21. SHAREHOLDER COMMUNICATIONS.
Securities and Exchange Commission Rule 14b-2 requires banks which hold
securities for the account of customers to respond to requests by issuers of
securities for the names, addresses and holdings of beneficial owners of
securities of that issuer held by the bank unless the beneficial owner has
expressly objected to disclosure of this information. In order to comply with
the rule, State Street needs the Company to indicate whether it authorizes State
Street to provide the
19
Company's name, address, and share position to requesting companies whose
securities are held in the Account. If the Company tells State Street "no",
State Street will not provide this information to requesting companies. If the
Company tells State Street "yes" or does not check either "yes" or "no" below,
State Street is required by the rule to treat the Company as consenting to
disclosure of this information for all securities owned by the Company or any
funds or accounts established by the Company. For the Company's protection, the
Rule prohibits the requesting company from using the Company's name and address
for any purpose other than corporate communications. Please indicate below
whether the Company consents or objects by checking one of the alternatives
below.
Yes [X] State Street is authorized to release the Company's
name, address, and share positions.
No [ ] State Street is not authorized to release the
Company's name, address, and share positions.
SECTION 22. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to State Street that it has full capacity
and authority to enter into this Agreement and to perform its obligations under
this Agreement and it has taken all necessary action to authorize the execution,
delivery and performance by it of this Agreement.
20
IN WITNESS WHEREOF, each of the parties has caused this instrument to
be executed in its name and behalf by its duly authorized representative as of
the day and year first written above.
PLATINUM UNDERWRITERS PLATINUM RE (UK) LIMITED
HOLDINGS, LTD.
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Its:________, Duly Authorized Its:________, Duly Authorized
PLATINUM REGENCY HOLDINGS PLATINUM UNDERWRITERS FINANCE, INC.
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Its:________, Duly Authorized Its:________, Duly Authorized
PLATINUM UNDERWRITERS STATE STREET BANK AND TRUST
BERMUA, LTD. COMPANY
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Its:________, Duly Authorized Its:________, Duly Authorized
21
FUNDS TRANSFER OPERATING GUIDELINES
1. OBLIGATION OF THE SENDER: State Street Bank and Trust Company ("State
Street") is authorized to promptly debit Client's (as named below) account(s)
upon the receipt of a payment order in compliance with any of the Security
Procedures chosen by the Client, from those offered on the attached selection
form (and any updated selection forms hereafter executed by the Client), for
funds transfers and in the amount of money that State Street has been instructed
to transfer. State Street shall execute payment orders in compliance with the
delivery methods and Security Procedures indicated on the attached selection
form (and any updated selection forms hereafter executed by the Client) and with
the Client's (or its Investment Manager's) instructions on the execution date
provided that such payment order is received by the customary deadline for
processing such a request, unless the payment order specifies a later time.
State Street will use reasonable efforts to execute on the execution date
payment orders received after the customary deadline, but if it is unable to
execute any such payment order on the execution date, such payment order will be
deemed to have been received on the next business day.
2. SECURITY PROCEDURES: The Client acknowledges that the selected Security
Procedures were selected by the Client from Security Procedures offered by State
Street. The Client agrees that the Security Procedures are reasonable and
adequate for its wire transfer transactions and agrees to be bound by any
payment orders, amendments and cancellations, whether or not authorized, issued
in its name and accepted by State Street after being confirmed by any of the
selected Security Procedures. The Client also agrees to be bound by any other
valid and authorized payment order accepted by State Street. The Client shall
restrict access to confidential information relating to the Security Procedures
to authorized persons as communicated in writing to State Street. The Client
must notify State Street immediately if it has reason to believe unauthorized
persons may have obtained access to such information or of any change in the
Client's authorized personnel.
State Street shall verify the authenticity of all instructions according to the
selected Security Procedures.
3. ACCOUNT NUMBERS: State Street shall process all payment orders on the
basis of the account number contained in the payment order. In the event of a
discrepancy between any name indicated on the payment order and the account
number, the account number shall take precedence and govern. Financial
institutions that receive payment orders initiated by State Street at the
instruction of the Client may also process payment orders on the basis of
account numbers, regardless of any name included in the payment order. State
Street will also rely on any financial institution identification numbers
included in any payment order, regardless of any financial institution name
included in the payment order.
4. REJECTION: State Street reserves the right to decline to process or
delay the processing of a payment order which (a) is in excess of the collected
balance in the account to be charged at the time of State Street's receipt of
such payment order; (b) if initiating such payment order would cause State
Street, in State Street's sole judgment, to exceed any applicable volume,
aggregate dollar, network, time, credit or similar limits upon wire transfers;
or (c) if State Street, in good faith, is unable to satisfy itself that the
transaction has been properly authorized.
5. CANCELLATION OR AMENDMENT: State Street shall use reasonable efforts to
act on all authorized requests to cancel or amend payment orders received in
compliance with the selected Security Procedures provided that such requests are
received in a timely manner affording State Street a reasonable opportunity to
act. However, State Street assumes no liability if the request for amendment or
cancellation cannot be satisfied.
6. ERRORS: State Street shall assume no responsibility for failure to
detect any erroneous payment order provided that State Street complies
1
with the payment order instructions as received and State Street complies with
the selected Security Procedures. The Security Procedures are established for
the purpose of authenticating payment orders only and not for the detection of
errors in payment orders.
7. INTEREST AND LIABILITY LIMITS: State Street shall assume no
responsibility for lost interest with respect to the refundable amount of any
unauthorized payment order, unless State Street is notified of the unauthorized
payment order within thirty (30) days of notification by State Street of the
acceptance of such payment order. In no event shall State Street be liable for
special, indirect or consequential damages, even if advised of the possibility
of such damages and even for failure to execute a payment order.
8. AUTOMATED CLEARING HOUSE ("ACH") CREDIT ENTRIES/PROVISIONAL PAYMENTS:
When the Client initiates or receives ACH credit and debit entries pursuant to
these Guidelines and the rules of the National Automated Clearing House
Association, the New England Clearing House Association and the Mid-America
Payment Exchange or other similar body, State Street or its agent will act as an
Originating Depository Financial Institution and/or Receiving Depository
Financial Institution, as the case may be, with respect to such entries. Credits
given by State Street or its agent with respect to an ACH credit entry are
provisional until final settlement for such entry is received from the Federal
Reserve Bank. If such final settlement is not received, the Client agrees to
promptly refund the amount credited to the Client in connection with such entry,
and the party making payment to the Client via such entry shall not be deemed to
have paid the amount of the entry.
9. CONFIRMATIONS: Confirmation of State Street's execution of payment
orders shall ordinarily be provided within 24 hours. Notice may be delivered
through State Street's information systems, account statements, advices, or by
facsimile or callback. The Client must report any objections to the execution of
a payment order within 30 days.
10. MISCELLANEOUS: State Street and the Client agree to cooperate to
attempt to recover any funds erroneously paid to wrong parties, regardless of
any fault of State Street or the Client, but the party responsible for the
erroneous payment shall bear all costs and expenses incurred in trying to effect
such recovery. These Guidelines may not be amended except by a written agreement
signed by the parties.
11. LIABILITY ON FOREIGN ACCOUNTS: State Street shall not be required to
repay any deposit made at a non-U.S. branch of State Street, or any deposit made
with State Street and denominated in a non-U.S. dollar currency, if repayment of
such deposit or the use of assets denominated in the non-U.S. dollar currency is
prevented, prohibited or otherwise blocked due to: (a) an act of war,
insurrection or civil strife; (b) any action by a non-U.S. government or
instrumentality or authority asserting governmental, military or police power of
any kind, whether such authority be recognized as a defacto or a dejure
government, or by any entity, political or revolutionary movement or otherwise
that usurps, supervenes or otherwise materially impairs the normal operation of
civil authority; or (c) the closure of a non-U.S. branch of State Street in
order to prevent, in the reasonable judgment of State Street, harm to the
employees or property of State Street. The obligation to repay any such deposit
shall not be transferred to and may not be enforced against any other branch of
State Street.
The foregoing provisions constitute the disclosure required by Massachusetts
General Laws, Chapter 167D, Section 36.
While State Street is not obligated to repay any deposit made at a non-U.S.
branch or any deposit denominated in a non-U.S. currency during the period in
which its repayment has been prevented, prohibited or otherwise blocked, State
Street will repay such deposit when and if all circumstances preventing,
prohibiting or otherwise blocking repayment cease to exist.
2
SECURITY PROCEDURES SELECTION FORM
Please select at least two of the funds transfer security procedures indicated
below.
[ ] SWIFT
SWIFT (Society for Worldwide Interbank Financial Telecommunication) is
a cooperative society owned and operated by member financial
institutions that provides telecommunication services for its
membership. Participation is limited to securities brokers and dealers,
clearing and depository institutions, recognized exchanges for
securities, and investment management institutions. SWIFT provides a
number of security features through encryption and authentication to
protect against unauthorized access, loss or wrong delivery of
messages, transmission errors, loss of confidentiality and fraudulent
changes to messages.
Selection of this security procedure would be most appropriate for
existing SWIFT members.
[ ] REMOTE BATCH TRANSMISSION
Wire transfer instructions are delivered via Computer-to-Computer
(CPU-CPU) data communications between the Client and/or its agent and
State Street and/or it& agent. Security procedures include encryption
and/or the use of a test key by those individuals authorized as
Automated Batch Verifiers or a callback procedure to those individuals.
Clients selecting this option should have an existing facility for
completing CPU-CPU transmissions. This delivery mechanism is typically
used for high-volume business such as shareholder redemptions and
dividend payments.
[ ] AUTOMATED CLEARING HOUSE (ACH)
State Street or its agent receives an automated transmission from a
Client for the initiation of payment (credit) or collection (debit)
transactions through the ACH network. The transactions contained on
each transmission or tape must be authenticated by the Client. The
transmission is sent from the Client's or its agent's system to State
Street's or its agent's system with encryption.
[ ] REPETITIVE WIRES
For situations where funds are transferred periodically from an
existing authorized account to the same payee (destination bank and
account number) and only the date and currency amount are variable, a
repetitive wire may be implemented. Repetitive wires will be subject to
a $10 million limit. If the payment order exceeds the $10 million
limit, the instruction will be confirmed by Telephone Confirmation
(Call Back) or Test Key prior to execution. Repetitive wire
instructions must be reconfirmed annually. Clients may establish
Repetitive Wires by following the agreed upon security procedures as
described by Telephone Confirmation (Call Back) or Test Key.
This alternative is recommended whenever funds are frequently
transferred between the same two accounts. IF THIS OPTION IS SELECTED,
CHOOSE EITHER TELEPHONE CONFIRMATION OR TEST KEY TO BE USED AS A
SECONDARY PROCEDURE WHEN OVER $10 MILLION.
[ ] STANDING INSTRUCTIONS
Funds are transferred by State Street to a counter party on the
Client's established list of authorized counter parties. Only the date
and the dollar amount are variable. Clients may establish Standby
Instructions by following the agreed upon security procedures as
described by Telephone Confirmation (Call Back) or Test Key. Additional
paperwork will be required from insurance Clients using 1031 drawdowns.
This option is used for transactions that include but are not limited
to Foreign Exchange Contracts, Time Deposits and Tri-Party Repurchase
Agreements. IF THIS OPTION IS SELECTED, CHOOSE EITHER TELEPHONE
CONFIRMATION OR TEST KEY TO BE USED AS A SECONDARY PROCEDURE WHEN OVER
$10 MILLION.
[ ] TELEPHONE CONFIRMATION (CALL BACK)
This procedure requires Clients to designate individuals as authorized
initiators and authorized verifiers. State Street will verify that the
instruction contains the signature of an authorized person and prior to
execution of the payment order, will contact someone other than the
originator at the Client's location to authenticate the instruction.
Selection of this alternative is appropriate for Clients who do not
have the capability to use other security procedures. PLEASE COMPLETE
THE TELEPHONE CONFIRMATION INSTRUCTIONS ATTACHED AS A SCHEDULE HERETO.
[ ] TEST KEY
Test Key confirmation will be used to verify all non-repetitive funds
transfer instructions received via facsimile or phone. State Street
will provide test keys if this option is chosen. State Street will
verify that the instruction contains the signature of an authorized
person and prior to execution of the payment order, will authenticate
the test key provided with the corresponding test key at State Street.
Selection of this alternative is appropriate for CLIENTS who do not
have the capability to use other security procedures.
The individual signing below must be authorized to sign contract on behalf of
the client. The execution of payment orders under the selected Security
Procedures is governed by the Funds Transfer Operating Guidelines, which are
incorporated by reference.
PLATINUM UNDERWRITERS HOLDINGS, LTD.
CLIENT
By:____________________________
Authorized Signature
_______________________________
Type or Print Name
_______________________________
Title
_______________________________
Date
3
PLATINUM REGENCY HOLDINGS PLATINUM RE (UK) LIMITED
By:____________________________ By:____________________________
Authorized Signature Authorized Signature
_______________________________ _______________________________
Type or Print Name Type or Print Name
_______________________________ _______________________________
Title Title
_______________________________ _______________________________
Date Date
PLATINUM UNDERWRITERS BERMUDA, LTD. PLATINUM UNDERWRITERS FINANCE, LTD.
By:____________________________ By:____________________________
Authorized Signature Authorized Signature
_______________________________ _______________________________
Type or Print Name Type or Print Name
_______________________________ _______________________________
Title Title
_______________________________ _______________________________
Date Date
4
SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT: PLATINUM UNDERWRITERS HOLDINGS, LTD.
Company Name
ACCOUNT NUMBER(S): CIW1
KEY CONTACT INFORMATION
Who shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
City/State/Zip Code City/State/Zip Code
_______________________________ _______________________________
Telephone Number Telephone Number
_______________________________ _______________________________
Facsimile Number Facsimile Number
_______________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
____________________________________________________ ____________________
APPROVAL (FOR STATE STREET USE ONLY) DATE
1
SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT: PLATINUM REGENCY HOLDINGS
Company Name
ACCOUNT NUMBER(S): CIW2
KEY CONTACT INFORMATION
Who shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
City/State/Zip Code City/State/Zip Code
_______________________________ _______________________________
Telephone Number Telephone Number
_______________________________ _______________________________
Facsimile Number Facsimile Number
_______________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
________________________________________ ____________________
APPROVAL (FOR STATE STREET USE ONLY) DATE
2
SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT: PLATINUM UNDERWRITERS BERMUDA. LTD.
Company Name
ACCOUNT NUMBER(S): CIW3
KEY CONTACT INFORMATION
Who shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
City/State/Zip Code City/State/Zip Code
_______________________________ _______________________________
Telephone Number Telephone Number
_______________________________ _______________________________
Facsimile Number Facsimile Number
_______________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
________________________________________ ____________________
APPROVAL (FOR STATE STREET USE ONLY) DATE
______________________ ______________________ ____________________
______________________ ______________________ ____________________
3
SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT: PLATINUM RE (UK) LIMITED
Company Name
ACCOUNT NUMBER(S): CIW5
KEY CONTACT INFORMATION
Who shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
City/State/Zip Code City/State/Zip Code
_______________________________ _______________________________
Telephone Number Telephone Number
_______________________________ _______________________________
Facsimile Number Facsimile Number
_______________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
________________________________________ ___________________
APPROVAL (FOR STATE STREET USE ONLY) DATE
4
SCHEDULE TO FUNDS TRANSFER OPERATING GUIDELINES
AND SECURITY PROCEDURES SELECTION FORM
CLIENT: PLATINUM UNDERWRITERS FINANCE, INC.
Company Name
ACCOUNT NUMBER(S): CIW6
KEY CONTACT INFORMATION
Who shall we contact to implement your selection(s)?
CLIENT OPERATIONS CONTACT ALTERNATE CONTACT
_______________________________ _______________________________
Name Name
_______________________________ _______________________________
Address Address
_______________________________ _______________________________
City/State/Zip Code City/State/Zip Code
_______________________________ _______________________________
Telephone Number Telephone Number
_______________________________ _______________________________
Facsimile Number Facsimile Number
_______________________________
SWIFT Number
TELEPHONE CONFIRMATION INSTRUCTIONS
Authorized Initiators (Please Type or Print) - Please provide a listing of your
staff members who are currently authorized to INITIATE wire transfer
instructions:
NAME TITLE SPECIMEN SIGNATURE
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
______________________ ___________________ ____________________
Authorized Verifiers (Please Type or Print) - Please provide a listing of your
staff members who will be CALLED BACK to verify the initiation of repetitive
wires of $10 million or more and all non-repetitive wire instructions:
NAME CALLBACK PHONE NUMBER DOLLAR LIMITATION
(IF ANY)
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________ ______________________ ____________________
______________________________________________ ____________________
APPROVAL (FOR STATE STREET USE ONLY) DATE
5
REMOTE ACCESS SERVICES ADDENDUM
State Street Bank and Trust Company ("State Street") has developed
proprietary accounting and other systems, and has acquired licenses for other
such systems, which it utilizes in conjunction with the services we provide to
you (the "Systems"). In this regard, we maintain certain information in
databases under our control and ownership that we make available on a remote
basis to our customers (the "Remote Access Service").
The Services. This addendum shall govern use of all Systems that State
Street may from time to time agree to provide you, the Customer, and your
designated investment advisors, consultants or other third parties authorized by
State Street who agree to abide by the terms of this addendum ("Authorized
Designees") in order to provide Remote Access Services for the purpose of
obtaining and analyzing reports and information.
Security Procedures. You agree to comply, and to cause your Authorized
Designees to comply, with remote access operating standards and procedures and
with user identification or other password control requirements and other
security procedures as may be issued from time to time by State Street for use
of the Systems and access to the Remote Access Services. You agree to advise
State Street immediately in the event that you learn or have reason to believe
that any person to whom you have given access to the Systems or the Remote
Access Services has violated or intends to violate the terms of this addendum
and you will cooperate with State Street in seeking injunctive or other
equitable relief. You agree to discontinue use of the Systems and Remote Access
Services, if requested, for any security reasons cited by State Street.
Fees. Fees and charges (if any) for the use of the Systems and the
Remote Access Services and related payment terms shall be as set forth in
Schedule A. You shall be responsible for any tariffs, duties or taxes imposed or
levied by any government or governmental agency by reason of the transactions
contemplated by this addendum, including, without limitation, federal, state and
local taxes, use, value added and personal property taxes (other than income,
franchise or similar taxes which may be imposed or assessed against State
Street). Any claimed exemption from such tariffs, duties or taxes shall be
supported by proper documentary evidence delivered to State Street.
Proprietary Information/Injunctive Relief. The Systems and Remote
Access Services and the databases, computer programs, screen formats, report
formats, interactive design techniques, formulae, processes, systems, software,
know-how, algorithms, programs, training aids, printed materials, methods,
books, records, files, documentation and other information made available to you
by State Street as part of the Remote Access Services and through the use of the
Systems and all copyrights, patents, trade secrets and other proprietary rights
of State Street and its relevant licensors related thereto are the exclusive,
valuable and confidential property of State Street and its relevant licensors,
as applicable (the "Proprietary Information"). You agree on behalf of yourself
and your Authorized Designees to keep the Proprietary Information confidential
and to limit access to your employees and Authorized Designees (under a similar
duty of confidentiality) who require access to the Systems for the purposes
intended. The foregoing shall not apply to Proprietary Information in the public
domain or required by law to be made public.
6
You agree to use the Remote Access Services only in connection with the
proper purposes of this addendum. You will not, and will cause your employees
and Authorized Designees not to, (i) permit any third party to use the Systems
or the Remote Access Services, (ii) sell, rent, license or otherwise use the
Systems or the Remote Access Services in the operation of a service bureau or
for any purpose other than as expressly authorized under this addendum, (iii)
use the Systems or the Remote Access Services for any fund, trust or other
investment vehicle without the prior written consent of State Street, or (iv)
allow or cause any information transmitted from State Street's databases,
including data from third party sources, available through use of the Systems or
the Remote Access Services, to be redistributed or retransmitted for other than
use for or on behalf of yourself, as our Customer.
You agree that neither you nor your Authorized Designees will modify
the Systems in any way, enhance or otherwise create derivative works based upon
the Systems, nor will you or your Authorized Designees reverse engineer,
decompile or otherwise attempt to secure the source code for all or any part of
the Systems.
You acknowledge that the disclosure of any Proprietary Information, or
of any information which at law or equity ought to remain confidential, will
immediately give rise to continuing irreparable injury inadequately compensable
in damages at law, and that State Street and its licensor, if applicable, shall
be entitled to obtain immediate injunctive relief against the breach or
threatened breach of any of the foregoing undertakings, in addition to any other
legal remedies which may be available.
Limited Warranties. State Street represents and warrants that it has
the right to grant access to the Systems and to provide the Remote Access
Services contemplated herein. Because of the nature of computer information
technology and the necessity of relying upon third-party sources, and data and
pricing information obtained from third parties, the Systems and Remote Access
Services are provided "AS IS", and you and your Authorized Designees shall be
solely responsible for the investment decisions, regulatory reports and
statements produced using the Remote Access Services. State Street and its
relevant licensors will not be liable to you or your Authorized Designees for
any direct or indirect, special, incidental, punitive or consequential damages
arising out of or in any way connected with the Systems or the Remote Access
Services, nor shall either party be responsible for delays or nonperformance
under this Agreement arising out of any cause or event beyond such party's
control.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, STATE STREET FOR
ITSELF AND ITS RELEVANT LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES
CONCERNING THE SYSTEM AND THE SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS
OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTIBILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
Infringement. State Street will defend or, at our option, settle any
claim or action brought against you to the extent that it is based upon an
assertion that access to any proprietary System
7
developed and owned by State Street or use of the Remote Access Services through
any such proprietary System by you under this addendum constitutes direct
infringement of any United States patent or copyright or misappropriation of a
trade secret, provided that you notify State Street promptly in writing of any
such claim or proceeding and cooperate with State Street in the defense of such
claim or proceeding. Should any such proprietary System or the Remote Access
Services accessed thereby or any part thereof become, or in State Street's
opinion be likely to become, the subject of a claim of infringement or the like
under the patent or copyright or trade secret laws of the United States, State
Street shall have the right, at State Street's sole option, to (i) procure for
you the right to continue using such System or Remote Access Services, (ii)
replace or modify such System or Remote Access Services so that the System or
the Remote Access Services becomes noninfringing, or (iii) terminate this
Agreement without further obligation.
Termination. Either party may terminate this Addendum in accordance
with Section 12 of the Custodian and Accounting Services Agreement or
immediately for failure of the other party to comply with any material term and
condition of the addendum by giving the other party written notice of
termination. This addendum shall in any event terminate within ninety (90) days
after the termination of any State Street custodian, accounting or other
services agreement applicable to you. In the event of termination, you will
return to State Street all copies of documentation and other confidential
information in your possession or in the possession of your Authorized
Designees. The foregoing provisions with respect to confidentiality and
infringement will survive termination for a period of three (3) years.
Miscellaneous. Except as provided in the next sentence, this addendum
constitutes our entire understanding with respect to access to the Systems and
the Remote Access Services. If any State Street custody, accounting or other
services agreement with you contains terms and conditions relating to computer
systems or data access, this addendum shall constitute an amendment and
supplement to them, and in the event of any inconsistency the provisions
providing the greatest benefit to State Street shall control. This addendum
cannot be modified or altered except in a writing duly executed by both of us
and shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
8
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
INVESTMENT ACCOUNTING AND CUSTODY FEE SCHEDULE
FOR
PLATINUM UNDERWRITERS HOLDINGS LTD.
AND AFFILIATES
INVESTMENT ACCOUNTING
ASSUMPTIONS
- $ 1.0 billion in assets
- Daily processing of investment transactions
- Transactions to be provided to State Street in
required file format for loading into PAM
- Monthly pricing of portfolios to be provided by
designated third parry or Platinum Underwriters
Holdings Ltd..
INVESTMENT ACCOUNTING SERVICES
Provide Platinum Underwriters with outsourcing of investment accounting
including:
- Account for assets on a GAAP and statutory basis
- On-line, real-time access to PAM for Securities
- Internal management reporting - standard reports from
PAM system
- On-line access to Impromptu report writer for custom
reporting
- Reconciliation of PAM to custody records for par
value/shares
- Standard PAM journals (cash,transaction and
valuation) provided in ASCII file format
INVESTMENT ACCOUNTING SERVICES FEES
ASSETS ACCOUNTED FOR
- Up to first $ 1.0 billion 1.2 BASIS POINTS
- Thereafter .8 BASIS POINTS
- IMPLEMENTATION FEE - One-time conversion fee
of $20,000 for structuring of the portfolios
on PAM for Securities and converting the
"current" tax lot level position
information. There will be an incremental
charge of $5,000/month for each month of
historical investment information back
loaded into PAM if required.
Please Note: The above fee schedule is based on information provided by Platinum
Underwriters Holding, Ltd.. Significant changes in portfolio composition and
activity may necessitate a revision of these terms. This fee schedule is
confidential and is intended for Platinum Underwriters internal use only.
FEE CALCULATION AND BILLING
Fees will be calculated on a quarterly basis in advance and derived by
multiplying the applicable basis point rates above by the total
invested assets accounted for at the beginning of each quarterly
billing period. The effective date for billing will begin with
9
the first month-end reporting period State Street becomes the "book of
record". The implementation fee is due upon contract signing.
SCHEDULE A
STATE STREET BANK AND TRUST COMPANY
INVESTMENT ACCOUNTING AND CUSTODY FEE SCHEDULE
FOR
PLATINUM UNDERWRITERS HOLDINGS LTD.
AND AFFILIATES
II. CUSTODY
Maintain custody of fund assets. Settle portfolio purchases and sales. Report
buy and sell fails. Determine and collect portfolio income. Make cash
disbursements and report cash transactions. Monitor corporate actions. Online
access to portfolio information via In-sight.
DOMESTIC CUSTODY
- Annual Asset Based Fee .25 basis points
- Transaction charge for domestic trades $7.50 per trade
- Options/Futures $8.00 per transaction
- Third party money market investments $7.50 per transaction
- Third Party F/X $7.50 per transaction
- Wire transfers $6.00 per transaction
- Physicals $25.00
Investments in State Street or SSGA investment products and F/X transactions
initiated through State Street are free of charge.
III. OUT-OF-POCKET EXPENSES
A billing for the recovery of applicable out-of-pocket expenses will be
made as of the end of each month. Out-of-pocket expenses include, but
are not limited to, the following:
- Overnight Mailings - Pre-approved Travel
- Follow-up Training - Annual Audit Letter
- External Pricing
IV. TERMS
The above referenced fee proposal is part of a three-year agreement
between Platinum Underwriters Holdings Ltd. and State Street to provide
investment accounting and custody services. State Street agrees to fix
the above fee rates for three years from the date of the signed
investment accounting and custody agreement; provided that significant
changes in portfolio composition and activity may necessitate a
revision of these terms.
10
Schedule A
STATE STREET BANK AND TRUST COMPANY
INVESTMENT ACCOUNTING AND CUSTODY FEE SCHEDULE
FOR
PLATINUM UNDERWRITERS HOLDINGS LTD.
AND AFFILIATES
PLATINUM UNDERWRITERS HOLDINGS LTD. PLATINUM REGENCY HOLDINGS
By _________________________ By ___________________
Title _________________________ Title ________________
Date _________________________ Date _________________
PLATINUM UNDERWRITERS BERMUDA, LTD. PLATINUM UNDERWRITERS FINANCE, INC.
By _________________________ By ___________________
Title _________________________ Title ________________
Date _________________________ Date _________________
PLATINUM RE (UK) LIMITED STATE STREET BANK AND TRUST COMPANY
By _________________________ By ___________________
Title _________________________ Title ________________
Date _________________________ Date _________________
11
EXHIBIT A
Schedule of Investment Accounting and Recordkeeping Functions
The PAM Software's standard reports listed below will be made available to
Clinet via dial-in access to the PAM Software. Client acknowledges that the
timeliness of the reports generated by State Street in performing the Services
as set forth below are based upon the timeliness of delivery of all necessary
data.
A. MONTHLY OBLIGATIONS. State Street will provide to Client the following on a
Statutory and GAAP basic;
1. Transaction Recording and Review. All reports listed below will be made
available via on-line to Client within two(2) business days after Client's
Designated Custodian has provided to state Street all final custodian bank
statements via on-line.
Reports:
- Transaction Journal Report
- Transaction Ledger Report
- Asset Reconciliation Report
A. The transaction journal Report will be available in a PAM ASCII
file format for posting to Client's general ledger system. State
Street will input and review of all manager directed trades
originating from client and outside manager. Client must ensure that
all trades are promptly and accurately reported to state street daily.
In monthly or on an interim basic if requested.
B. Any exceptions found the custodian bank asset reconciliation
process will be investigated and State street will use reasonable
efforts to resolve within Twenty-four(24) hours. Any discrepancies
will be resolved by making corrections to accounting system records or
by notifying the custodian bank in writing via email or facsimile of a
bank error to be corrected by the custodian bank. Client will be
copied on all custodian back correspondence.
C. State Street will set up and review all new security master files.
Client will have the primary responsibility for providing all
necessary descriptive data on newly acquired securities.
2. Cash Processing. All reports listed below will be made available via
on-line to Client within two(2) business days after Client's Designated
Custodian has provided State Street with all necessary cash detail via
on-line. Cash Processing includes cash settlements, cash processing,
Suspense processsing and inquiries of overdues.
Reports:
- Cash journal Report
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EXHIBIT A
Schedule of Investment Accounting and Recordkeeping Functions
- Open Receivable/Payable Report
- Unapplied Cash Report
A. The Cash Journal Report will be available in a PAM
ASCII file format for posting to Client's general ledger
system.
B. Client shall supply State Street with written
instructions to identify and record appropriate general ledger
accounts to be offset for repetitive miscellaneous cash
transactions and advise State Street on an as-needed basis for
non-repetitive miscellaneous items.
C. Client shall verify that (i) the total cash receipt
and disbursement activity, and ending balances, by account,
agree with the bank provided data; and (ii) open item listings
appear reasonable and in-line with Client expectations. State
Street shall not be responsible or liable for any incorrect
information.
D. Client must ensure that investment managers promptly
respond to State Street inquiries regarding discrepancies
resulting from trading activity initiated by them.
3. Valuation of Assets. All reports listed below will be made
available via on-line to Client within two (2) business days after
Client, Client's Designated Custodian, or agreed upon market data
vendor has provided State Street with all the necessary market prices.
Reports:
- Valuation Journal
- Holdings Report
- GAAP Holdings Report
- Missing Prices Report
- Income Earned Report
A. The Valuation Journal will be available in a PAM
ASCII file format for posting to Client's general ledger
system.
B. In order for State Street to value Client's
portfolios Client must provide State Street with (i) all
transaction positions for the month to be evaluated and (ii)
pricing data.
C. Upon receipt of all transaction positions for the
month to be evaluated, State Street will use reasonable
efforts to provide missing pricing data from the agreed upon
market data vendor or Client. However, Client is responsible
for any and all missing prices not supplied to State Street
via the agreed upon market data vendor. In order to aide
Client in determining those securities yet to be priced for
the month, State Street will make
13
available to Client the Missing Prices Report within
twenty-four (24) hours after pricing is provided by the Client
or agreed upon market data vendor.
D. Client is required to monitor below investment grade
securities and advise State Street in writing, no later than
three (3) days prior to the delivery of all reports, if any
permanent impairment recording is necessary.
E. Client is responsible for reviewing and assuring all
investment results for material reasonableness.
4. Realized Gain/Loss. All reports listed below will be made
available via on-line to Client within two (2) business days
after Client has provided State Street with the necessary
transaction information.
Reports:
- Realized Gain/Loss Report
B. QUARTERLY AND ANNUAL OBLIGATIONS. State Street will provide
the following on a quarterly and annual basis as necessary:
1. Regulatory (Statutory) Reporting. All reports listed below
will be made available via on-line to Client within seven (7)
business days after delivery of the month end reports.
Reports:
- Schedule D- All Parts
- Schedule DA - Parts I and II
- Schedule DB
- Risk Based Capital Report
- Schedule E - Securities on Deposit Report
- Statutory Reconciliation Report by Book Value
- Statutory Reconciliation Report by Carry Value
- Statutory Holdings Report
State Street will also make available to Client the formatted file for Schedule
D All Parts and DA Parts I and II for interface to Client's annual statement
package provided the annual statement package is a PAM Software approved annual
statement package.
2. GAAP Reporting. Within seven (7) business days after delivery
of the month-end reports, State Street will make available via
on-line all final and reconciled reports listed below:
Reports:
- GAAP Maturity Distribution Report
- GAAP Footnote Disclosure Report
14
Schedule 2
Control Agreement
CONTROL AGREEMENT
Control Agreement dated as of November____, 2002, by and among PLATINUM
RE (UK) LIMITED ("PARTY A"), PLATINUM UNDERWRITERS BERMUDA, LTD. ("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 Agreement; 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 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 Underwriters Bermuda, Ltd. for the Benefit of Platinum Re (UK)
Limited" (the "Securities Account"); and a separate and segregated deposit
account or accounts (as defined in Section 9-102 of the UCC) entitled "Platinum
Underwriters Bermuda, Ltd. for the Benefit of Platinum Re (UK) 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 carried by, in or to the credit of
Securities 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 8-102(a)(9). Each of the Collateral
1
Accounts shall be maintained separately and apart from any other account or
sub-account of the 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 perfection 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 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),
2
below: (i) Custodian shall take actions with respect to the Collateral in the
Collateral Accounts upon the joint instructions of Party A and Party B, and (ii)
Custodian shall have no responsibility or liability to Party A or Party B for
actions taken in accordance with such joint 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 by its attorney in fact as designated
in writing by Party A to the Custodian from time to time pursuant, and subject
to the limitations contained in, a written power of attorney delivered to the
Custodian. 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 party 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.
3. DISTRIBUTIONS. Custodian shall, upon proper written
instructions by Party B, credit the Distributions 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
3
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 Party B
Custodian will release Collateral held in the Collateral Accounts in accordance
with such instructions.
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 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.
4
(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 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.
(vii) 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 depository 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.
(viii) 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 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
5
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 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:
6
If to Party A, then: If to Party B, then: If to Custodian, then:
Platinum Re (UK) Limited Platinum Underwriters Bermuda, Ltd. State Street Bank and Trust Company
52 Lime Street Clarendon House 801 Pennsylvania Avenue
London EC3M 7NL 2 Church Street Kansas City, MO 64105
UK Hamilton HM 11 Attention: Vice President, Insurance
Attention: Guy Butler Bermuda Services
Telephone: 011-44-207-220-8110 Attention: Dawna L. Ferguson Telephone: (816)871-4100
Telecopy: 011-44-207-623-6610 Telephone: 441-295-5950 Telecopy: (816)871-9675
Telecopy: 441-292-4720
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 Party 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.
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.
7
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.
PLATINUM RE (UK) LIMITED
By: _______________________
Name: _____________________
Title: ____________________
PLATINUM UNDERWRITERS BERMUDA, LTD.
By: _______________________
Name: _____________________
Title: ____________________
STATE STREET BANK AND TRUST COMPANY
By: _______________________
Name: _____________________
Title: ____________________
8
EXHIBIT A
TO CONTROL AGREEMENT AMONG PLATINUM RE (UK) LIMITED, PLATINUM
UNDERWRITERS BERMUDA, LTD. AND STATE STREET BANK AND TRUST COMPANY
FORM OF THE SECURITY AGREEMENT
[See attached]
9
EXHIBIT B
To CONTROL AGREEMENT AMONG PLATINUM RE (UK) LIMITED, PLATINUM
UNDERWRITERS BERMUDA, LTD. AND STATE STREET BANK AND TRUST COMPANY
[Letterhead of Party A]
[Date]
State Street Bank and Trust Company
801 Pennsylvania Avenue
Kansas City, MO 64105
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 Underwriters Bermuda,
Ltd. (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,
Platinum Re (UK) Limited
By: __________________________
Authorized Signatory
cc:
10
EXHIBIT C
TO CONTROL AGREEMENT AMONG PLATINUM RE (UK) LIMITED, PLATINUM
UNDERWRITERS BERMUDA, LTD. AND STATE STREET BANK AND TRUST COMPANY
AUTHORIZED PERSONS FOR PLATINUM RE (UK) 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 Platinum
Re (UK)_ Limited
Name Telephone/Fax Number Signature
- ---- ---------------------- --------------------
1. 1. Telephone Facsimile 1. _________________
2. 2. Telephone Facsimile 2. _________________
3. 3. Telephone Facsimile 3. _________________
4. 4. Telephone Facsimile 4. _________________
5. 5. Telephone Facsimile 5. _________________
Authorized by: _________________________________
as authorized agent of Platinum Re (UK)_ Limited
Name: ____________________________
Title: ___________________________
11
SCHEDULE I
TO CONTROL AGREEMENT AMONG PLATINUM RE (UK) LIMITED, PLATINUM
UNDERWRITERS BERMUDA, LTD. AND STATE STREET BANK AND TRUST COMPANY
COLLATERAL ACCOUNTS
Deposit Account
- ----------------------------------------------------------------
Description Number
- ----------------------------------------------------------------
Platinum Underwriters Bermuda fbo Platinum Re (UK) 54798079
- ----------------------------------------------------------------
Securities Account
- ----------------------------------------------------------------
Description Number
- ----------------------------------------------------------------
Platinum Underwriters Bermuda fbo Platinum Re (UK) CIW7
- ----------------------------------------------------------------
12
Schedule 3
Investment Advisory Agreement
ALLIANCE CAPITAL MANAGEMENT L.P.
Discretionary Investment Advisory Agreement
With
Platinum Underwriters Bermuda, Ltd.
Platinum Re (UK) Limited
Dated November _, 2002
(Effective Date)
Alliance Capital Management L.P. (the "Adviser") and
the undersigned hereby agree as of the above date that the Adviser shall act as
discretionary investment manager with respect to certain assets of Platinum
Underwriters Bermuda, Ltd., (the "Client") described below (the "Investment
Account") on the following terms and conditions:
1. The Investment Account
The Investment Account established for the Client
refers collectively to the Collateral Accounts defined in and subject to a
certain Control Agreement, by and among the Client, Platinum Re,(UK) Limited
("Platinum UK") and State Street Bank and Trust Company, dated as of November _,
2002 (the "Control Agreement") and established as a condition of the Quota Share
Retrocession Agreement, by and between the Client and Platinum UK, dated as of
_________, 2002, (the "Quota Share Retrocession Agreement"). The investment
account shall initially consist of cash and USD, Sterling, Euro, and
Yen-denominated government and investment grade corporate bonds within the
classes permitted by the Financial Services Authority of the United Kingdom as
described in Schedule A ("Eligible Credit Support") placed in the Investment
Account by the Client or which shall become part of the Investment Account as a
result of transactions.
All cash, securities and other assets in the
Investment Account shall be held by such other party as the Client, with the
prior written consent of Platinum UK shall designate as trustee or custodian for
such account (each, a "Custodian"). As of the date of this Agreement, the Client
and Platinum UK have designated State Street Bank and Trust Company as
Custodian. The Adviser shall not be responsible for any custodial arrangements
involving the assets of the Investment Account or for the payment of any
custodial charges and fees, nor shall the Adviser have possession or custody of
any such assets. All payments, distributions and other transactions in cash,
securities or other assets in respect of the Investment Account shall be made
directly to or from the Custodian for such Investment Account, and the Adviser
shall have no responsibility or liability with respect to transmittal or
safekeeping of such cash, securities or other assets of an Investment Account,
or the acts or omissions of any Custodian or others with respect thereto. The
Client may make additions to or withdrawals from the Investment Account
established for it,
provided the Adviser receives at least three (3) business days' prior written
notice of withdrawals. Should the Client fail to provide the Adviser with
timely written notice of any additions to or withdrawals from its Investment
Account, the Adviser shall not be liable for any resulting investment or other
loss, if any, which shall be incurred by or charged to the applicable
Investment Account, as the case may be. The Client agrees to provide or
instruct the Custodian for its Investment Account to provide to the Adviser
such information as the Adviser may reasonably request as being necessary or
appropriate to the performance of the Adviser's responsibilities to the Client
under this Agreement.
2. Services of Adviser
By execution of this Agreement, the Adviser accepts
its appointment as investment manager for the Investment Account with full
discretion and agrees to supervise and direct the investments of the Investment
Account in accordance with the written investment objectives, policies and
restrictions of the Client previously furnished to the Adviser as the same may
be amended by the Client from time to time. In the performance of its services,
the Adviser will not be liable for any error in judgment or any acts or
omissions to act except those resulting from the Adviser's negligence, willful
misconduct, malfeasance or material breach of this Agreement. Nothing herein
shall in any way constitute a waiver or limitation of any right of any person
under the Federal securities laws or any state securities laws
The Adviser will make available to the Client a daily
report on the positions of each of the investments in the Investment Account and
a monthly written report of the inventory of investments in the Investment
Account established for the Client. It is agreed that the Adviser, in the
maintenance of its records, does not assume responsibility for the accuracy of
information furnished by any Client or any other person.
3. Funding Policy
The Client shall from time to time inform the Adviser
in writing of the funding policy applicable to it and of its cash disbursement
requirements. The Adviser shall make its investment decisions for an Investment
Account in accordance with such funding policy and requirements.
4. Investment Objectives, Policies and Restrictions
It will be the responsibility of the Client to notify
the Adviser in writing of any modifications to Schedule A. The Client is also
required to notify the Adviser in writing of specific restrictions governing its
Investment Account under the current or future laws of any jurisdiction or by
virtue of the terms of any other contract or instrument purporting to bind the
Client or the Adviser.
The Adviser acknowledges and agrees that it shall
not, without the prior written consent of Platinum UK, accept any changes to
Schedule A or otherwise adopt investment objectives, policies or restrictions
that would be in conflict with Schedule A.
2
5. Delivery of Client Documentation
No later than the date of this Agreement, the Client
will provide the Adviser with copies of all documents relevant to the Adviser's
management of the Investment Account established for the Client, (i.e. trust
agreement, pension plan documents, by-laws, etc.), including the Client's
written statement of investment objectives, policies and restrictions referred
to above. The Client further agrees to promptly deliver to the Adviser true and
complete copies of all amendments or supplements to such documents. The Client
will indemnify and hold harmless the Adviser against any and all losses, costs,
claims and liabilities which it may suffer or incur arising out of any failure
by the Client to provide to the Adviser the documents required to be furnished
in accordance with the above provisions.
6. Discretionary Authority
The Adviser, whenever it deems appropriate may (i)
buy, sell, exchange, convert, liquidate or otherwise trade in any stock, bonds
and other securities (including money market instruments) and contracts relating
to the same, and (ii) subject to its duty to seek best execution, place orders
for the execution of such transactions with or through such brokers, dealers or
issuers as the Adviser in its absolute discretion may select.
It is understood that, to the extent permitted by
Schedule A, the Adviser or Alliance Capital Global Derivatives Corporation, an
affiliate of the Adviser, may also effect transactions for the Investment
Account of the Client in options and futures and other commodity contracts. In
such event, the Client will execute any additional documentation which the
Adviser deems necessary to enable it or its affiliate to engage in such
transactions on behalf of its Investment Account. The Client represents and
warrants that it is familiar with the requirements of the Commodity Exchange Act
and the National Futures Association pertaining to commodity pool operators and
has determined that it is in compliance with such requirements, to the extent
applicable.
7. Brokerage Transactions
Fixed-income securities transactions for the
Investment Account will generally be effected in dealer markets where the
Adviser will act as agent for the Client in the purchase or sale of fixed-income
securities at a net price that includes a mark-up from the dealer. The Adviser
will issue instructions to such issuers, brokers and dealers for the placement
of orders for the Investment Account and instruct such dealers to forward to the
Client copies of all confirmations promptly after the execution of transactions
for the Client's Investment Account.
8. Aggregation of Transactions
The Client authorizes the Adviser in its discretion
to aggregate purchases and sales of securities for its Investment Account with
purchases and sales of securities of the same issuer for other clients of the
Adviser occurring on the same day. When transactions are so aggregated, the
actual prices applicable to the aggregated transactions will be averaged, and
the
3
Investment Account and the accounts of other participating clients of the
Adviser will be deemed to have purchased or sold their proportionate share of
the securities involved at the average price so obtained.
9. Transaction Procedures
All transactions will be settled by payment to, or
delivery by, the applicable Custodian of all cash, securities or other assets
due to or from the Investment Account. The Adviser may issue such instructions
to a Custodian as may be appropriate in connection with the settlement of
transactions initiated by the Adviser. Instructions of the Adviser to a
Custodian shall be transmitted in writing or, at the option of the Adviser,
orally and confirmed in writing as soon as practical thereafter. The Adviser
will take reasonable measures to insure that broker-dealers and issuers selected
by the Adviser perform their obligations with respect to the Investment
Accounts.
10. Fees
The compensation of the Adviser for its services
under this Agreement shall be calculated and paid by the Client in respect of
the Investment Account established for it, in accordance with the Fee Schedule
attached hereto as Exhibit A, as the same may be amended from time to time by
mutual agreement between the Client and the Adviser. It is understood that, in
the event that such fees are to be billed to and paid by the Custodian for an
Investment Account, the Client will provide written authorization to the
Custodian to pay the fees of the Adviser directly from the Investment Account.
The Client shall be responsible solely for the fee due to the Adviser in respect
of the Investment Account established for such Client.
11. Confidential Relationship
All information provided by the Client or a Custodian
to the Adviser shall be held as confidential by the Adviser; provided, however,
as is necessary to carry out the purposes of this Agreement or as may be
required by law, the Adviser shall be permitted to disclose or communicate to a
proper party any information received from the Client or a Custodian or
developed by the Adviser under the terms of this Agreement. All recommendations,
advice and other work product of the Adviser developed under the terms of this
Agreement and disclosed to the Client or a Custodian shall be held as
confidential, except as required by law. Notwithstanding the foregoing, Client
hereby authorizes the Adviser to disclose through whatever means it deems
appropriate (CHECK THE APPROPRIATE BOXES BELOW):
PLATINUM UNDERWRITERS BERMUDA, LTD.
(a) Yes [X] No [ ] that the Client is an investment
management client of the Adviser;
(b) Yes [X] No [ ] the type of assets that the Adviser is
managing for the Client from time to
time (e.g., fixed-income assets);
and/or
4
(c) Yes [X] No [ ] solely in the limited context of the
Adviser's responses to Request for
Proposals ("RFPs"), the Adviser is also
authorized by the Client to disclose in
such RFPs, the value of the assets
managed for the Client by the Adviser
from time to time.
If the Client does not check either "yes" or "no" to any of the requested
disclosure authorizations indicated in (a) through (c) above, the Client shall
be deemed to have no objection to the Adviser disclosing the indicated
information. The Client may revoke these authorizations in respect of itself, at
any time by written notice to the Adviser.
12. Services to Other Clients
It is understood that the Adviser performs investment
advisory services for various clients including investment companies. The Client
agrees that the Adviser may give advice and take action with respect to any of
its other clients which may differ from advice given, or the timing or nature of
action taken, with respect to the Investment Account established for it, so long
as it is the Adviser's policy, to the extent practical, to allocate investment
opportunities to the Investment Account over a period of time on a fair and
equitable basis relative to other clients.
Nothing in this Agreement shall limit or restrict the
Adviser or any of its directors, officers, affiliates or employees from buying,
selling or trading in any securities or other assets for its or their own
account or accounts, and each of the Client and Platinum UK acknowledges that
the Adviser, its directors, officers, affiliates and employees, and other
clients of the Adviser, may at any time have, acquire, increase, decrease or
dispose of positions in investments which are at the same time being acquired,
the or disposed of for the Investment Account.
The Adviser will not have the obligation to initiate
the purchase or sale, or to recommend for purchase or sale, for the Investment
Account any security or other asset which the Adviser, its directors, officers,
affiliates or employees may purchase, hold or sell for its or their own accounts
or for the accounts of any other clients of the Adviser.
13. Non-Public Information
The Adviser will have no obligation to purchase or
sell for the Investment Account the securities of any issuer on the basis of any
material non-public information as may come into its possession.
14. Representations by the Client and Platinum UK
5
The Client represents and warrants that the
appointment of the Adviser as discretionary investment adviser entitled to give
entitlement orders or other instructions and communications to the Custodian is
authorized by the governing documents (including, but not limited to the Quota
Share Retrocession Agreement and all documents related thereto) relating to the
Investment Account and that the terms of this Agreement do not violate any
provisions thereof or any obligation by which it is bound, whether arising by
contract, operation of law or otherwise. The Client and Platinum UK each
represents and warrants as to itself that (i) this Agreement has been duly
authorized by appropriate action and when executed and delivered will be binding
upon it in accordance with its terms; and (ii) it will deliver to the Adviser
such evidence of such authority as the Adviser may reasonably require, whether
by way of a certified resolution or otherwise.
15. Representations by Adviser
The Adviser represents that (i) it is registered as
an investment adviser under the Investment Advisers Act of 1940, as amended (the
"Advisers Act") and (ii) that it has all other regulatory authority and capacity
to enter into this Agreement and perform its duties hereunder.
16. Indemnification
The Adviser agrees to indemnify and hold the Client
harmless from any and all expenses, damages, costs and fees, including
reasonable attorney's fees, which may be incurred by reason of the Adviser's
negligence, willful misconduct, malfeasance, material breach of this Agreement
or violation of applicable law.
17. Valuation
In computing the market value of any security held in
the Investment Account, the Adviser shall value such security through
independent, recognized pricing services utilized by the Adviser for pricing
securities held in its advisory accounts generally. Any other security or asset
shall be valued in a manner determined in good faith by the Adviser to reflect
its fair market value.
18. Receipt of Disclosure Statement
Each of the Client and Platinum UK acknowledges
receipt of Part II of the Adviser's current Form ADV in compliance with Rule
204-3(b) under the Advisers Act more than forty eight (48) hours prior to the
date of execution of this Agreement.
19. Notices
Unless otherwise specified herein, all notices,
instructions and advice with respect to security transactions or any other
matters contemplated by this Agreement shall be deemed duly given when received
by the Client, Platinum UK and the Adviser, as applicable, at their
6
addresses appearing below. In respect of the Investment Account, the Adviser may
rely upon any notice (written or oral) from any person whom the Adviser
reasonably believes to be an authorized representative of the Client.
20. Specimen Signatures
The Adviser will forward from time to time to the
Client and the Custodian for the Client's Investment Account, a list of names
and specimen signatures of persons authorized to act on behalf of the Adviser.
Each of the Client and Platinum UK will forward to the Adviser a list of names
and specimen signatures of persons authorized to act on behalf of the Client and
Platinum UK (as the case may be) and shall cause the Custodian of its Investment
Account to forward a like list and specimen signatures to the Adviser.
21. Invalid Provisions
If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future law, such provision
shall be fully severable, and this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised a part
of this Agreement, and the remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or its severance from this Agreement.
22. Termination; Assignment; Amendment; Suspension
This Agreement may be terminated at any time by the
Client in respect of its Investment Account by giving to the Adviser at least
thirty (30) days' prior written notice of such termination. This Agreement may
be terminated at any time by the Adviser in respect of the Investment Account by
giving to the Client at least thirty (30) days' prior written notice of such
termination. Fees paid in advance of the effectiveness of the termination will
be prorated to the date of termination specified in the notice of termination,
and any unearned portion thereof will be refunded to the Client. No assignment,
as that term is defined in the Advisers Act, shall be made by the Adviser
without the written consent of the Client. No assignment shall be deemed to
result from changes in the directors, officers or employees of the Adviser
except as may be provided in the Advisers Act. The Adviser agrees that it will
notify the Client of any change in the membership of the general partners of the
Adviser within a reasonable time after such change. This Agreement may be
amended or modified at any time by mutual agreement of the Client, Platinum UK
and the Adviser in writing.
Upon receipt by the Adviser from Platinum UK of a
Notice of Exclusive Control (as defined under Section 2.3(i) of the Control
Agreement) the Adviser shall cease management of the Investment Account as soon
as reasonably practicable until such time that it is provided written notice
from Platinum UK that it is instructed to recommence management of the
Investment Account (the "Suspension Period"). Upon receipt by the Adviser from
Platinum UK of a Notice of Revocation of that certain Power of Attorney, dated
____, 2002 (pursuant to which Adviser is permitted by Platinum UK to give
instructions to Custodian on its behalf in accordance with the terms thereto,
the "Power of Attorney"), the Adviser shall immediately
7
cease to give instructions to the Custodian on behalf of Platinum UK unless and
until the Adviser receives a substitute power of attorney on the same terms as
the revoked Power of Attorney or on such other terms as may be mutually agreed
between the Adviser and Platinum UK. The Adviser shall not be liable for any
resulting investment or other loss, if any incurred by or charged to the
Investment Account resulting from either (i) the Notice of Exclusive Control, or
(ii) delays incident to obtaining any consent from Platinum UK with respect to
any action proposed to be taken with respect to the Investment Account that is
required pursuant to the Control Agreement. Fees shall continue to accrue during
the Suspension Period.
23. Counterparts
This Agreement may be executed in two or more
counterparts, each one of which shall be deemed to be an original.
24. Governing Law
To the extent Federal law does not apply, this
Agreement shall be construed in accordance with and governed by the laws of the
State of New York.
25. Entire Agreement
This Agreement constitutes the entire agreement of
the parties with respect to management of the Investment Account.
8
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective representatives as of the date
first above written.
PLATINUM UNDERWRITERS BERMUDA, LTD.
BY: ________________________
Name:
Title:
ADDRESS: Clarendon House
2 Church Street
Hamilton HM11
BERMUDA
Attention: Dawna L. Ferguson
PLATINUM RE (UK) LIMITED
BY: ________________________
Name:
Title:
ADDRESS: 52 Lime Street
London EC3M 7NL
UNITED KINGDOM
Attention: Guy Butler
ALLIANCE CAPITAL MANAGEMENT L.P.
BY: Alliance Capital Management
Corporation, its General Partner
BY: ________________________
Louis T. Mangan
Assistant Secretary
ADDRESS: 1345 Avenue of the Americas
New York, New York 10105
Attn: Holly Spencer
cc: Managing Director,
Institutional Asset Management
9
New Account Documentation
for
Platinum Underwriters Bermuda, Ltd.
The Adviser will require the documents identified below to establish its
investment management relationship with Platinum Underwriters Bermuda, Ltd.
1. Fully executed advisory agreement (with fee schedule attached).
2. Accurate list of securities to be transferred to new account unless
initially consisting of cash or cash equivalents.
3. Written statement of investment objectives, guidelines and
restrictions, if any.
4. Form W-9/W-8, as applicable.
5. List of Authorized Signatories.
6. Certified resolution of the Board of Directors or appropriate Committee
authorizing appointment of the Adviser as investment adviser.
10
EXHIBIT A
ALLIANCE CAPITAL MANAGEMENT L.P.
FIXED INCOME INSURANCE ASSET MANAGEMENT FEES
PREPARED FOR
Platinum Underwriters Bermuda, Ltd.
FOR MINIMUM FIXED INCOME ACCOUNT SIZE OF $1 BILLION
Fee Assets
- ----- ------------
0.19% on the first $100 million
0.14% on the next $150 million
0.11% on the next $250 million
0.10% on the balance
FOR FIXED INCOME ASSETS LESS THAN $1 BILLION
Fee Assets
- ----- ------------
0.20% on the first $100 million
0.15% on the next $150 million
0.12% on the next $250 million
0.10% on the balance
SCHEDULE A
INVESTMENT GUIDELINES
INVESTMENT GUIDELINES
PLATINUM UNDERWRITERS BERMUDA LIMITED
PLATINUM RE (UK) LIMITED
INVESTMENT OBJECTIVE:
The Fund's assets are managed to provide a high degree of investment income
subject to risk, guidelines, appropriate liquidity considerations, and tax
efficiency.
Other objectives include to maintain or enhance the Platinum Group's
[Financial/Credit] rating and to generate a superior long-term total rate of
return versus a benchmark.
PORTFOLIO DURATION:
The targeted duration of the portfolio will be that of the liability stream,
which Platinum will provide as needed. If no liability stream is available, a
duration target of 3.5 years will apply. The portfolio could deviate as much as
+/- one year away from this target. There is no limitation placed on the
duration of individual securities.
PORTFOLIO CREDIT QUALITY:
The average quality of the managed fund should be no less than A/A2.
- ---------------------------------------------------------------------------------------------------------------------------
SECURITY PARAMETERS: DIVERSIFICATION LIMITS
- ---------------------------------------------------------------------------------------------------------------------------
SECURITY: RATING:
- ---------------------------------------------------------------------------------------------------------------------------
i. GOVERNMENT Government securities issued by OECD Governments AA-/Aa3 or 100% per issuer 100% of
better portfolio
- ---------------------------------------------------------------------------------------------------------------------------
ii. MONEY MARKETS Repurchase and reverse repurchase agreements 3% per issuer 100% of
portfolio
----------------------------------------------------------------------------------------------
Negotiable Certificates of Deposit and Time A-/A3 or better 3% per issuer 100% of
Deposits, Demand Notes and Funding Agreements portfolio
----------------------------------------------------------------------------------------------
Commercial paper, including finance company paper A1/P1 or better 3% per issuer 100% of
and asset-backed commercial paper portfolio
- ---------------------------------------------------------------------------------------------------------------------------
iii. MORTGAGE BACKED Mortgage backed securities whose collateral is A/A2 or better 5% per issuer 30% of
SECURITIES AND guaranteed by FNMA, FHLMC or GNMA - agency portfolio
ASSET-BACKED mortgage backed securities (pass-throughs and
SECURITIES CMOs)
----------------------------------------------------------------------------------------------
Asset-backed securities (an asset-backed security A/A2 or better 5% per issuer 20% of
issued by a discreet master trust will be thought portfolio
of as an individual issuer) - Public and 144a
asset-backed securities
----------------------------------------------------------------------------------------------
Publicly issued private label pass-throughs and A/A2 or better 5% per issuer 30% of
CMOs (excluding I/Os and P/Os) portfolio
- ---------------------------------------------------------------------------------------------------------------------------
iv. COMMERCIAL MORTGAGE Commercial mortgage backed securities (including A/A2 or better 3% per issuer 10% of
BACKED SECURITIES REITS) portfolio
- ---------------------------------------------------------------------------------------------------------------------------
v. MUNICIPAL BONDS Municipal securities, including "general A-/A3 or better 3% per issuer 100% of
obligation" and "revenue" bonds* portfolio
-------------------------------------------
Greater than 3% per issuer 10% of
BBB-/Baa3, less portfolio
than A-/A3
- ---------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------
vi. CORPORATE Notes, debentures, medium term notes or secured A-/A3 or better 3% per issuer 50% of
SECURITIES securities** portfolio
-------------------------------------------
BBB-/Baa3 3% per issuer 20% of
or better portfolio
----------------------------------------------------------------------------------------------
Credit default swaps (only when the swap A-/A3 or 3% per issuer 50% of
{unfunded version} can create more investment better portfolio
income than the bond for the same reference
entity).***
-------------------------------------------
BBB-/Baa3 or 3% per issuer 20% of
better portfolio
- ---------------------------------------------------------------------------------------------------------------------------
vii. PREFERRED STOCKS Preferred Stocks including Perpetual, Sinking BBB-/Baa3 or 2.5% per issuer 10% of
Fund, Adjustable Rate and Fixed Rate better portfolio
- ---------------------------------------------------------------------------------------------------------------------------
viii. SOVEREIGN AND Sovereign securities AA-/Aa3 or 50% per issuer 50% of
SUPRANATIONAL better portfolio
SECURITIES
----------------------------------------------------------------------------------------------
Supranational securities AA-/Aa3 or 50% per issuer 50% of
better portfolio
- ---------------------------------------------------------------------------------------------------------------------------
The per issuer limitations are a function of the market value of the combined
accounts (US, Bermuda and UK).
The maximum percentage for all securities rated BBB/Baa is 20% of the portfolio.
A maximum of 30% of the portfolio to be invested in iii. Above.
OTHER RESTRICTIONS:
Futures and options are permitted, provided the instrument is used as a hedge,
with specific prior approval from Platinum.
- - Swaps
- - Futures
- - Exchange traded options
- - Over-the-counter options
Structured securities or securities with embedded options are permitted.
Leverage is not permitted.
In the case of a split rating, the lower of the ratings available shall apply.
Should a security be downgraded below investment grade (BBB-/Baa3) the manager
must notify and consult with Platinum as soon as reasonably practicable,
regarding the optimal timing of the disposal.
For securities with variable principal repayment, the estimated duration should
be used with respect to the duration restrictions.
All holdings must be denominated in the base currency of the relevant portfolio
(but including legacy currencies in the case of Euros).
WITHHOLDING TAXES:
No investments shall be made that give rise to withholding taxes unless the
after-tax returns are competitive with available returns on which withholding
taxes are not imposed, which will ordinarily only occur where the investor is
able to utilize the withheld taxes as a credit against its domestic income tax
liability. In general investments made with respect to the Bermuda account will,
in the case of securities issued by U.S. issuers, be limited to securities that
are eligible for the " portfolio interest exemption"- i.e., essentially
securities that are in registered form and not issued by a 10% or more
shareholder of Platinum Holdings.
KEY:
* General obligation bonds are secured by the issuer's pledge of its full
faith, credit and taxing power for the payment of principal and
interest. Revenue or special tax bonds are payable only from the
revenues derived from a particular facility or class of facilities or,
in some cases, from the proceeds of a special excise or other tax, but
not from general tax revenues. Municipal bonds will be utilized when
there is an after-tax benefit to the portfolio.
** No more than 25% of the portfolio assets can be invested in an
industry.
*** For Credit Default Swaps, the rating of the reference entity will serve
as the rating for the Swap.
****
Schedule 4
Security Agreement
- --------------------------------------------------------------------------------
SECURITY AGREEMENT
Dated as of November __, 2002
between
PLATINUM UNDERWRITERS BERMUDA, LTD.,
as Debtor,
and
PLATINUM RE (UK) LIMITED,
as Secured Party
- --------------------------------------------------------------------------------
THIS SECURITY AGREEMENT (this "Agreement"), dated as
of November __, 2002, is made and entered into by and between PLATINUM
UNDERWRITERS BERMUDA, LTD, a company organized under the laws of Bermuda (the
"Debtor"), and PLATINUM RE (UK) LIMITED, a company incorporated in the United
Kingdom (the "Secured Party").
PRELIMINARY STATEMENTS
1. The Debtor and the Secured Party entered into that
certain Quota Share Retrocession Agreement, dated as of November __, 2002 (as
such agreement may be amended, modified or supplemented from time to time, the
"Retrocession Agreement").
2. The Debtor and the Secured Party have appointed the
Custodian (as hereinafter defined) to hold the Collateral (as hereinafter
defined) as collateral agent and securities intermediary on behalf of the
Secured Party pursuant to that certain Control Agreement, dated as of November
__, 2002 among the Debtor, the Custodian and the Secured Party (the "Control
Agreement"). The Debtor has also appointed the Investment Adviser (as
hereinafter defined) to give advice from time to time in relation to the
investment of such Collateral pursuant to that certain Discretionary Investment
Advisory Agreement, dated as of November __, 2002 among the Debtor, the
Investment Adviser and the Secured Party (the "Investment Advisory Agreement").
3. The parties hereto desire to enter into this
Agreement, among other things, to grant to the Secured Party a continuing
security interest in and to all of the Collateral as security for the
Obligations (as hereinafter defined).
4. This Agreement is being entered into pursuant to the
terms of Article 14(C) of the Retrocession Agreement.
NOW THEREFORE, in consideration of the foregoing and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions.
(a) For all purposes of this Agreement
capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Retrocession Agreement, the Control Agreement and the
Investment Advisory Agreement (such meanings to be equally applicable to both
the singular and plural forms of the terms defined) and all references in this
Agreement to Sections are to Sections of this Agreement unless specified
otherwise.
(b) Except for the terms defined in this
Agreement, the Retrocession Agreement, the Control Agreement or the Investment
Advisory Agreement all terms defined in 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:
"Base Currency" means United States Dollars.
"Base Currency Equivalent" means, with respect to an
amount on a Valuation Date, in the case of an amount denominated in the Base
Currency, such Base Currency amount and, in the case of an amount in a currency
other than the Base Currency (the "Other Currency"), the amount in the Base
Currency required to purchase such amount of the Other Currency at the spot
exchange rate on such Valuation Date as reported by the Custodian in accordance
with such agreement as may from time to time be in place for such purpose
between the Custodian and the Debtor with the prior written consent of the
Secured Party.
"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.
"Credit Support Amount" means with respect to the
Secured Party on a Valuation Date and subject to Section 3.07 in the case of a
dispute, an amount equal to the sum of (a) an amount equal to the product of
20/55 multiplied by the outstanding reinsurance recoveries owing to the Secured
Party by the Debtor as at such Valuation Date under the Retrocession Agreement,
plus (b) an amount equal to the product of 20/55 multiplied by the aggregate of
the IBNR and unearned premium reserves attributable as at such Valuation Date to
the Retrocession Agreement, in each such case as shown by statements prepared as
at such Valuation Date by the Secured Party; provided, however, that the Credit
Support Amount will be deemed to be zero if the calculation of the Credit
Support Amount yields a number less than zero.
"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.
"Delivery Amount" has the meaning assigned to that
term in Section 3.02.
2
"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.
"Disputing Party" has the meaning assigned to that
term in Section 3.07.
"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.
"Eligible Credit Support" has the meaning assigned to
that term in the Investment Advisory Agreement.
"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.
"FSA" means the Financial Services Authority of the
United Kingdom.
"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.
"Insolvency Event" means any one or more of the
following: (a) the Debtor becomes unable 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.
"Local Business Day" 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;
3
(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.
"Obligations" means all present and future
obligations from time to time of the Debtor under the Retrocession Agreement and
this Agreement.
"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 out 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) to
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.
"Recalculation Date" means a Valuation Date that
gives rise to a dispute under Section 3.07; provided, however, that if a
subsequent Valuation Date occurs under Section 3.02 or 3.03 prior to the
resolution of the dispute, then the "Recalculation Date" means the most recent
Valuation Date under Section 3.02 or 3.03, as applicable.
"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
4
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) an amendment
or replacement of categories of securities constituting the Eligible Credit
Support or adoption of any additional investment objectives, policies and
restrictions that would be in conflict with the definition of Eligible Credit
Support either by the Debtor or by the Investment Adviser, in each case without
the prior written consent of the Secured Party, or (g) the Custodian's failure
to perform or otherwise comply with any of its obligations under the Control
Agreement, or (h) 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 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.
"Resolution Time" means 1:00 p.m., New York time, on
the Local Business Day following the date on which a notice is given that gives
rise to a dispute under Section 3.07.
"Retrocession Agreement" has the meaning assigned to
that term in the Preliminary Statements.
"Return Amount" has the meaning assigned to that term
in Section 3.03.
"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 Date" has the meaning assigned to that
term in Section 3.06(b).
"Substitution Notice" has the meaning assigned to
that term in Section 3.06(a).
5
"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.
"Valuation Agent" means the Secured Party or such
other person as the Debtor and the Secured Party may from time to time jointly
designate as Valuation Agent.
"Valuation Date" means the date of this Agreement,
1st January, 1st April, 1st July and 1st October in each calendar year and the
date of occurrence of any Relevant Event.
"Valuation Time" means the close of business on the
Local Business Day immediately preceding the Valuation Date or date of
calculation, as applicable; provided that the calculations of Value and Credit
Support Amount will, as far as practicable, be made as of approximately the same
time on the same date.
"Value" means for any Valuation Date or other date
for which Value is calculated, and subject to Section 3.07 in the case of a
dispute, with respect to Eligible Credit Support or Collateral that is: (a) an
amount of cash, the Base Currency Equivalent of such amount; and (b) a security,
the Base Currency Equivalent of its asset value as reported by the Custodian in
accordance with such agreement as may from time to time be in place for such
purpose between the Custodian and the Debtor with the prior written consent of
the Secured Party, provided, however, that the Value of the Eligible Credit
Support that is transferred into the Collateral Accounts as at the date of this
Agreement shall be determined by the Investment Adviser pursuant to the terms of
the Investment Advisory Agreement.
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;
(ii) the Securities Account, including
any credit or other balances of account credited thereto or carried
therein or other amounts transferred thereto;
(iii) all Eligible Credit Support, all
other Property transferred or required to be transferred from time to
time in, or credited to or required to be credited from time
6
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, 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 limited to, perfection
of the security interest created under this Agreement
in any jurisdiction in any part of the world;
(b) execute any transfer, bill of sale
or other assurance in respect of the Collateral;
7
(c) exercise all the rights and powers
of the Debtor in respect of the Collateral;
(d) ask for, demand, collect, sue 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 Credit Support. On the date
of this Agreement, the Debtor is transferring, or causing to be transferred,
into the Collateral Accounts Eligible Credit Support having the Value as at the
date of this Agreement at least equal to 20/55 of the premia ceded by the
Secured Party to the Debtor under the Retrocession Agreement.
Section 3.02 Delivery Amount. Subject to Section
3.07, on or promptly following a Valuation Date, if the Delivery Amount for that
Valuation Date is greater than zero, then the Debtor shall transfer, or cause to
be transferred, into the Collateral Accounts on the terms of this Agreement,
Eligible Credit Support having a Value as of the date of transfer at least equal
to the applicable Delivery Amount (rounded up, if necessary, to the nearest
integral multiple of USD 10,000). The "Delivery Amount" applicable to the Debtor
for any Valuation Date will equal the amount by which: the Credit Support Amount
exceeds the Value as of that Valuation Date of all Collateral under this
Agreement (as adjusted to include any prior Delivery Amount and to exclude any
prior Return Amount, the transfer of which, in either case, has not yet been
completed and for which the relevant Settlement Day falls on or after such
Valuation Date).
Section 3.03 Return Amount. Subject to Section
3.07, on or promptly following a Valuation Date, if the Return Amount for that
Valuation Date is greater than zero, then the Secured Party shall, upon the
Debtor's request, join the Debtor in instructing the Custodian to
8
release Collateral, specified by the Debtor in such demand, having a Value as of
the date of transfer as close as practicable to the applicable Return Amount
(rounded down, if necessary, to the nearest integral multiple of USD 10,000),
provided, however, that no Relevant Event has occurred and is continuing. The
"Return Amount" applicable with respect to any Valuation Date will equal the
amount by which the Value as of that Valuation Date of all Collateral under this
Agreement (as adjusted to include any prior Delivery Amount and to exclude any
prior Return Amount, the transfer of which, in either case, has not yet been
completed and for which the relevant Settlement Day falls on or after such
Valuation Date) exceeds the Credit Support Amount.
Section 3.04 Transfers. Subject to Section 3.07
and unless otherwise agreed between the parties from time to time, if an
obligation to transfer Eligible Credit Support 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.
(a) All calculations of Value for purposes of
this Article III shall be requested to be made by the Valuation Agent as of the
relevant Valuation Time in accordance with such agreement as may from time to
time be in place for such purpose between the Valuation Agent and the Debtor
and, unless the Secured Party itself acts as a Valuation Agent, with the prior
written consent of the Secured Party. The Valuation Agent shall be requested to
notify each party of its calculations not later than the Notification Time on
the Local Business Day following the applicable Valuation Date (or, in the case
of Section 3.07, following the date of calculation).
(b) All calculations of Credit Support Amount
for purposes of this Article III shall be made by the Secured Party as of the
relevant Valuation Time. The Secured Party shall notify the Custodian and the
Debtor of its calculations not later than the Notification Time on the Local
Business Day following the applicable Valuation Date.
(c) The parties agree that valuations reported
by the Valuation Agent 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 Eligible Credit Support specified in that Substitution Notice
(the "Substitute Credit Support") for certain Eligible Credit Support specified
in the Substitution Notice and held in the Collateral Accounts (the "Original
Credit Support").
9
(b) Following the service of such Substitution
Notice, the Original Credit Support shall be released, upon joint written
instructions by the Secured Party and the Debtor, to the Debtor against delivery
of the Substitute Credit Support (or an undertaking for such delivery) in
accordance with the customary settlement procedures (the "Substitution Date");
provided, however, that no Relevant Event has occurred and is continuing.
Section 3.07 Disputed Calculations or Valuations.
(a) If a party (a "Disputing Party") reasonably
disputes the Value of any transfer of Eligible Credit Support or Collateral,
then:
(i) the Disputing Party shall notify
the other party and, unless the Secured Party itself acts as a
Valuation Agent, the Valuation Agent not later than the close of
business on the Local Business Day following the date of transfer;
(ii) the parties will consult with each
other in an attempt to resolve the dispute; and
(iii) if they fail to resolve the dispute
by the Resolution Time, then the Valuation Agent will be requested to
recalculate the Value as of the date of the transfer.
Following a recalculation pursuant to this Section
3.07(a), the Valuation Agent shall notify each party as soon as possible but in
any event not later than the Notification Time on the Local Business Day
following the Resolution Time. The parties shall, following such notice by the
Valuation Agent or a resolution pursuant to this Section 3.07(a)(ii) above, and
subject to Section 3.04, join in giving the necessary instructions to the
Custodian to make the appropriate transfer; provided, however, that the Secured
Party shall not be obliged to join in giving such instructions if it has
delivered a Notice of Exclusive Control or such Notice of Exclusive Control has
not been revoked or rescinded by the Secured Party, or a Relevant Event has
occurred and is continuing.
(b) The failure by the Debtor to make a transfer
of any amount which is the subject of a dispute to which this Section 3.07(a)
applies shall not constitute a Relevant Event for so long as the procedures set
forth in this Section 3.07 are being carried out. For the avoidance of doubt,
upon completion of those procedures, any failure by the Debtor to make a
transfer required under the final sentence of this Section 3.07(a) on the
relevant due date shall constitute a Relevant Event.
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.
10
(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, jointly with the Secured Party, 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 Eligible Credit Support, 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 Party (to be
evidenced, where appropriate, by execution of joint instructions by the Debtor
and the Secured Party), except as expressly permitted under this Agreement. The
Secured Party agrees that (i) until a Relevant Event occurs, 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 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
11
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, upon proper written instructions by the
Debtor, credit the Distributions 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 revoked 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 credited 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
Eligible Credit Support 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.
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.
12
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 Custodian Lien)) other than the execution and delivery of the Control
Agreement and filing of appropriate financing statements or similar filings or
notifications in respect of the Collateral in the manner described in the
opinions of Massachusetts counsel to the Debtor and Bermuda counsel to the
Debtor 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.
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 law 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
13
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 delivery, 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 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 part 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.
14
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 they 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
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
15
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:
Platinum Re (UK) Limited
52 Lime Street
London EC3M 7NL
United Kingdom
Attn: Guy Butler
Telephone No.: 44-207-220-8110
Facsimile No.: 44-207-623-6610
If to the Debtor:
Platinum Underwriters Bermuda, Ltd.
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
16
Attention: Dawna L. Ferguson
Telephone No.: 441-295-5950
Facsimile No.: 441-292-4720
All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be considered as
properly given (a) if delivered in person, (b) if sent by internationally
recognized overnight delivery service, or (c) if sent by facsimile transmission.
Notice so given shall be effective upon receipt by the addressee; provided,
however, that if any notice is tendered during normal business hours on a Local
Business Day to an addressee in accordance with this Section 7.02 and the
delivery thereof is refused by such addressee, such notice shall be effective
upon such tender. Any party shall have the right to change its address for
notice hereunder to any other location by the giving of 30 days notice to the
other parties in the manner set forth hereinabove.
Section 7.03 Instructions. All entitlement orders
and other instructions and communications that the Debtor is entitled, or
desires, to give or make under this Agreement may be given or made either by the
Debtor itself or by the Investment Adviser, acting on behalf of the Debtor. All
entitlement orders and other instructions and communications that the Secured
Party is entitled, or desires, to give or make under this Agreement may be given
or made either by the Secured Party itself or by its attorney in fact,
including, without limitation, until notice of revocation is delivered to the
Debtor and the Investment Adviser, the Investment Adviser.
Section 7.04 Waiver; Amendment. This Agreement
may be changed, waived, discharged, or terminated only by an instrument in
writing executed by all of the parties hereto.
Section 7.05 Obligations Absolute. The
obligations of the Debtor under this Agreement shall be absolute and
unconditional and shall remain in full force and effect without regard to, and
shall not be released, suspended, discharged, terminated or otherwise affected
by, any circumstance or occurrence whatsoever, including, without limitation:
(a) any renewal, extension, amendment or modification of, or addition or
supplement to or deletion from, the Retrocession Agreement or any other
instrument or agreement referred to therein, or any assignment or transfer of
any thereof; (b) any waiver, consent, extension, indulgence or other action or
inaction under or in respect of any such instrument or agreement or this
Agreement or any exercise or non-exercise of any right, remedy, power or
privilege under or in respect of this Agreement or the Retrocession Agreement or
any other instrument or agreement referred to therein; (c) any furnishing of any
additional security to the Secured Party or any acceptance thereof or any sale,
exchange, release, surrender or realization of or upon any security by the
Secured Party; or (d) any invalidity, irregularity or unenforceability of all or
part of the 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.
17
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 7.08 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 delivery 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 inconvenient forum.
Section 7.09 Waiver of Jury 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 of the Obligations (other than contingent surviving obligations) or (ii)
subject to the prior consent of the FSA, the third anniversary of the date of
this Agreement, 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.
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.
18
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.]
19
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 UNDERWRITERS BERMUDA, LTD.,
as Debtor
By:________________________________
Name:
Title:
PLATINUM RE (UK) LIMITED, as Secured
Party
By:________________________________
Name:
Title:
SCHEDULE I
COLLATERAL ACCOUNTS
Deposit Account
Description Number
Platinum Underwriters Bermuda fbo Platinum Re (UK) 54798079
Securities Account
Description Number
Platinum Underwriters Bermuda fbo Platinum Re (UK) CIW7
E-ii