EXHIBIT 10.20
ASSIGNMENT OF REINSURANCE RECOVERABLES
BY AND AMONG
UNDERWRITERS REINSURANCE COMPANY
LASALLE BANK NATIONAL ASSOCIATION
AND
ROYAL INDEMNITY COMPANY,
ROYAL SURPLUS LINES INSURANCE COMPANY,
LANDMARK AMERICAN INSURANCE COMPANY
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JULY 1, 2003
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This ASSIGNMENT OF REINSURANCE RECOVERABLES (the "Assignment
Agreement"), dated as of July 1, 2003, is entered into by and among Royal
Indemnity Company ("RIC"), Royal Surplus Lines Insurance Company ("RSLIC"),
Landmark American Insurance Company ("Landmark", and together with RIC and
RSLIC, the "Ceding Companies"), Underwriters Reinsurance Company, a property and
casualty insurance company organized under the laws of New Hampshire
("Reinsurer"), and LaSalle Bank National Association (the "Trustee").
W I T N E S S E T H
WHEREAS, each of the Ceding Companies has entered into quota
share reinsurance agreements with Reinsurer, dated as of July 1, 2003
(collectively, the "Quota Share Reinsurance Agreements"), pursuant to which RIC,
RSLIC and Landmark respectively have agreed to cede, and Reinsurer has agreed to
assume, on a 100% quota share basis, the liabilities and obligations arising out
of the Reinsured Contracts (as such term is defined in the respective Quota
Share Reinsurance Agreements);
WHEREAS, pursuant to Section 9.1 of the respective Quota Share
Reinsurance Agreements, Reinsurer, as grantor, established the "Underwriter's
Reinsurance Company, Grantor" trust (the "Trust") pursuant to a trust agreement
as of July 1, 2003 (the "Trust Agreement") naming the Ceding Companies as sole
and exclusive beneficiaries of the Trust, and agreed to maintain in such Trust
cash and other Acceptable Investments (as such term is defined in the Trust
Agreement (collectively, the "Qualifying Assets")) in an amount (the "Required
Balance") equal to Reinsurer's aggregate obligations to the Ceding Companies
under the Quota Share Reinsurance Agreements, net of (i) collectible Reinsurance
Recoverables (as such term is defined in the respective Quota Share Reinsurance
Agreements), (ii) RIC's obligations to
Landmark under the RIC (Landmark) Quota Share Reinsurance Agreement (as such
term is defined therein) and (iii) premium receivables;
WHEREAS, pursuant to Section 9.2 of the respective Quota Share
Reinsurance Agreements, each of the Ceding Companies and Reinsurer have agreed
to enter into this Assignment Agreement, pursuant to which Reinsurer will assign
to the Trust, and grant the Trust a first priority perfected security interest
in, all of Reinsurer's right, title and interest in, to and under all Cat Cover
Reinsurance Recoverables (as such term is defined in the respective Quota Share
Reinsurance Agreements) under the catastrophe excess of loss reinsurance treaty
or treaties purchased by the Reinsurer with respect to the Reinsured Contracts
(the "Assignment"); and
WHEREAS, the parties hereto agree and acknowledge that the
purpose of the Assignment is to secure Reinsurer's obligation to the Ceding
Companies to maintain Qualifying Assets in the Trust at or above the Required
Balance.
NOW, THEREFORE, in consideration of the foregoing and the
respective covenants, agreements and conditions set forth herein and in the
Quota Share Reinsurance Agreements, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. DEFINITIONS. Certain capitalized terms used but not
defined in this Assignment Agreement shall have the meanings ascribed to such
terms in the respective Quota Share Reinsurance Agreements or the Trust
Agreement.
Section 2. ASSIGNMENT AND ASSUMPTION.
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(a) Subject to Sections 2(d) and 2(e) hereto, Reinsurer
hereby assigns, transfers, and conveys to the Trust all of Reinsurer's right,
title and interest in and to all of the Cat Cover Reinsurance Recoverables.
(b) Reinsurer agrees and acknowledges that the Assignment
shall, without limitation, grant the Trustee the exclusive right to collect the
Cat Cover Reinsurance Recoverables directly from the applicable third party
reinsurer, but only if the Qualifying Assets are less than the Required Balance,
and to retain the Cat Cover Reinsurance Recoverables to the extent that the
aggregate fair market value of Qualifying Assets in the Trust do not at least
equal the Required Balance. Reinsurer further agrees that it shall cooperate
with the Beneficiary in instructing the Trustee to assign its right to collect
such Cat Cover Reinsurance Recoverables directly from the applicable third party
reinsurer to the Ceding Companies, as named beneficiaries of the Trust if the
aggregate fair market value of Qualifying Assets in the Trust do not at least
equal the Required Balance. Any Cat Cover Reinsurance Recoverables which are
subject to the Assignment collected by the Reinsurer, Trustee and/or the Ceding
Companies shall be deposited directly into the Trust. The failure by the
Reinsurer, Trustee and/or the Ceding Companies to collect the Cat Cover
Reinsurance Recoverables shall not relieve Reinsurer of any of its obligations
under the Quota Share Reinsurance Agreements to maintain Qualifying Assets in
the Trust in an amount equal to the Required Balance.
(c) Reinsurer agrees and acknowledges that the Assignment
shall, without limitation, entitle the Trustee (and/or the Ceding Companies to
the extent the Trustee assigns its rights hereunder to the Ceding Companies) to
enforce in the name of Reinsurer any right or claim of Reinsurer with respect to
the Cat Cover Reinsurance Recoverables. Any assignment by the Trustee to the
Ceding Companies under this Assignment Agreement shall be
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solely for the purpose of enabling the Ceding Companies, as agent for the
Trustee, to collect such Cat Cover Reinsurance Recoverables for deposit into the
Trust.
(d) The parties hereto agree and acknowledge that the
purpose of the Assignment is to secure Reinsurer's obligation to the Ceding
Companies to maintain Qualifying Assets in the Trust at or above the Required
Balance. The rights of the Trustee under this Assignment Agreement with respect
to collection of the Cat Cover Reinsurance Recoverables directly from the
applicable third party reinsurer and enforcement of claims (or, if such rights
are assigned to the Ceding Companies pursuant to the Trust Agreement, the Ceding
Companies), are limited to the extent of the deficiency, if any, in the Required
Balance.
(e) The parties agree that all the proceeds of the Cat
Cover Reinsurance Recoverables collected by the Trustee in excess of the amount
necessary to maintain Qualified Assets in the Trust in an amount equal to the
Required Balance shall be remitted by wire transfer of immediately available
funds to the Reinsurer in accordance with Section 4.2(a) of the Trust Agreement.
(f) The parties hereto agree and acknowledge that while
the Assignment may not be revoked or terminated except pursuant to Section 6
hereof, Reinsurer will not be obligated to pay any Cat Cover Reinsurance
Recoverables actually collected to the Trust, so long as, at the time any of the
Cat Cover Reinsurance Recoverables are collected, the aggregate amount of
Qualifying Assets maintained in the Trust is at or above the Required Balance.
In the event the aggregate amount of cash and other Qualifying Assets maintained
in the Trust is below the Required Balance, the Assignment hereunder shall be of
all Cat Cover Reinsurance Recoverables due and owing, regardless of the amount
of the deficiency in the Trust.
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Section 3. ACCEPTANCE OF ASSIGNMENT. Trustee hereby accepts
the Assignment.
Section 4. ALL ACTIONS NECESSARY. Each party hereto, as
reasonably requested by the other from time to time, shall take all reasonably
appropriate action and execute any reasonably necessary and appropriate
additional documents, instruments or conveyances of any kind (not containing
additional representations and warranties, covenants or indemnities) which may
be reasonably necessary to carry out any of the provisions of this Assignment
Agreement.
Section 5. PERFECTED INTEREST IN ASSIGNMENT. The parties
intend that the Trustee shall at all times have a first priority, perfected
security interest in the Cat Cover Reinsurance Recoverables under the UCC and at
common law. Reinsurer shall use its reasonable best efforts to give effect to
the foregoing requirements and shall provide the Trustee with the requisite
power of attorney in order to allow the Trustee to execute and deliver UCC
financing statements with respect to any and all intangible assets assigned or
transferred to the Trustee hereunder. All costs and expenses incurred in
connection with obtaining a first priority perfected security interest shall be
paid by the Ceding Companies.
Section 6. TERMINATION OF ASSIGNMENT. The Assignment hereunder
may be terminated (i) by the mutual written consent of the Ceding Companies and
Reinsurer; or (ii) automatically upon the termination of the Trust pursuant to
the terms of the Trust Agreement.
Section 7. INTERPRETATION. Notwithstanding anything to the
contrary contained in this Assignment Agreement, nothing contained herein shall
be deemed to limit, restrict or modify in any manner the rights and obligations
of the parties under either the Quota Share Reinsurance Agreements, the
Administrative Services Agreements or the Trust
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Agreement. In case of any conflict between this Assignment Agreement and (a) the
Quota Share Reinsurance Agreements, (b) the Administrative Services Agreements,
(c) the Trust Agreement, (d) any other Ancillary Agreement, or (e) the
Acquisition Agreement, the Quota Share Reinsurance Agreements, the
Administrative Services Agreements, the Trust Agreement, the other Ancillary
Agreements or the Acquisition Agreement shall govern.
Section 8. BINDING EFFECT; ASSIGNMENT. This Assignment
Agreement shall be binding upon Reinsurer and its successors and assigns and
legal representatives. Except as provided in this Assignment Agreement, neither
this Assignment Agreement, nor any right or obligation hereunder, may be
directly or indirectly assigned or transferred by any party, in whole or in
part, to any third party (other than to Reinsurer's successors and assigns),
including, without limitation, any bankruptcy trustee, by operation of law or
otherwise, whether voluntary or involuntary, without the prior written consent
of the parties hereto.
Section 9. THIRD PARTY BENEFICIARIES. This Assignment
Agreement shall inure to the benefit of the Trust and the Ceding Companies, as
named beneficiaries of the Trust, and their successors and permitted assigns and
shall be binding upon Reinsurer and its successors and assigns, and nothing
herein is intended or shall be construed to confer upon any other Person any
right, remedy or claim under or by reason of this Assignment Agreement or any
term, covenant or condition hereof.
Section 10. AMENDMENT. This Assignment Agreement may only be
amended or modified by a written instrument executed by the parties hereto.
Section 11. GOVERNING LAW. This Assignment Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable principals
of conflicts of laws thereof.
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Section 12. ARBITRATION. Any right of action hereunder or any
dispute between the parties hereto arising out of, or relating to the formation,
interpretation, performance, or breach of this Assignment Agreement, whether
such dispute arises before or after termination of this Assignment Agreement,
shall be submitted to arbitration in accordance with the terms and procedures of
Article XIII of the Quota Share Reinsurance Agreements.
Section 13. CONSENT TO JURISDICTION. Subject to Section 11 of
this Assignment Agreement, each of the parties hereto irrevocably and
unconditionally submits to the exclusive jurisdiction of the state and federal
courts located in the State of Delaware for the purposes of enforcing this
Assignment Agreement. If any action is brought in a state court, the parties
shall take such actions as are within their control to cause any matter
contemplated hereby to be assigned to the Chancery Court of the State of
Delaware. In any action, suit or other proceeding, each of the parties hereto
irrevocably and unconditionally waives and agrees not to assert by way of
motion, as a defense or otherwise any claims that it is not subject to the
jurisdiction of the above courts, that such action or suit is brought in an
inconvenient forum or that the venue of such action, suit or other proceeding is
improper. Each of the parties hereto also agrees that any final and unappealable
judgment against a party hereto in connection with any action, suit or other
proceeding shall be conclusive and binding on such party and that such award or
judgment may be enforced in any court of competent jurisdiction, either within
or outside of the United States. A certified or exemplified copy of such award
or judgment shall be conclusive evidence of the fact and amount of such award or
judgment.
Section 14. SEVERABILITY. Any term or provision of this
Assignment Agreement which is invalid or unenforceable in any jurisdiction
shall, as to that jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or
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unenforceable the remaining terms and provisions of this Assignment Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Assignment Agreement in any other jurisdiction. If any provision of this
Assignment Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as would be enforceable.
Section 15. DESCRIPTIVE HEADINGS. The descriptive article and
section headings herein are inserted for convenience of reference only and are
not intended to be part of or to affect the meaning or interpretation of this
Assignment Agreement.
Section 16. COUNTERPARTS. This Assignment Agreement may be
executed in multiple counterparts, each of which shall be deemed to be an
original, said counterparts together to constitute one and the same instrument.
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IN WITNESS WHEREOF, this Assignment Agreement has been duly
executed and delivered by the duly authorized officers of ROYAL INDEMNITY
COMPANY, ROYAL SURPLUS LINES INSURANCE COMPANY, LANDMARK AMERICAN INSURANCE
COMPANY, UNDERWRITERS REINSURANCE COMPANY, and LASALLE BANK NATIONAL ASSOCIATION
as of the date first above written.
ROYAL INDEMNITY COMPANY
By: /s/ Stephen M. Mulready
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Name: Stephen M. Mulready
Title: President and Chief Executive
Officer
ROYAL SURPLUS LINES INSURANCE COMPANY
By: /s/ Stephen M. Mulready
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Name: Stephen M. Mulready
Title: President and Chief Executive
Officer
LANDMARK AMERICAN INSURANCE COMPANY
By: /s/ Stephen M. Mulready
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Name: Stephen M. Mulready
Title: President and Chief Executive
Officer
UNDERWRITERS REINSURANCE COMPANY
By: /s/ James P. Slattery
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Name: James P. Slattery
Title: President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ James L. Turco
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Name: James L. Turco
Title: Vice President