Exhibit 10.39
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TRUST AGREEMENT
Dated as of _____________, 2002
among
PLATINUM UNDERWRITERS REINSURANCE, INC.
("Platinum US")
as Grantor,
MOUNTAIN RIDGE INSURANCE COMPANY
("Mountain Ridge")
as Beneficiary,
and
[Name of Trustee Bank]
As Trustee
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TABLE OF CONTENTS
PARTIES PAGE
Section 1. Creation and Deposit of Assets to the Trust Account.......................2
Section 2. Withdrawal of Assets from the Trust Account...............................5
Section 3. Application of Assets.....................................................6
Section 4. Redemption, Investment and Substitution of Assets.........................7
Section 5. The Income Account........................................................8
Section 6. Right to Vote Assets......................................................9
Section 7. Additional Rights and Duties of the Trustee...............................9
Section 8. The Trustee's Compensation, Expenses and Indemnification.................11
Section 9. Resignation or Removal of the Trustee....................................12
Section 10. Termination of the Trust Account.........................................14
Section 11. Insolvency of Grantor....................................................15
Section 12. Definitions..............................................................15
Section 13. Governing Law............................................................17
Section 14. Grantor's Tax Status.....................................................17
Section 15. Successors and Assigns...................................................17
Section 16. Severability.............................................................17
Section 17. Entire Agreement.........................................................18
Section 18. Amendments...............................................................18
Section 19. Notices, etc.............................................................18
Section 20. Headings.................................................................19
Section 21. Counterparts.............................................................19
Section 22. Mergers, Consolidations..................................................19
EXHIBIT A Form of 100% Quota Share Retrocession Agreement
EXHIBIT B List of Assets Deposited to the Trust Account
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TRUST AGREEMENT
TRUST AGREEMENT, dated as of____________, 2002 (the "Agreement"),
among PLATINUM UNDERWRITERS REINSURANCE, INC. ("Platinum US"), a
Maryland-domiciled insurance company (the "Grantor"), MOUNTAIN RIDGE INSURANCE
COMPANY ("Mountain Ridge"), a Minnesota-domiciled insurance company (the
"Beneficiary"), and ____________, a [U.S.] banking corporation (the "Trustee")
(the Grantor, the Beneficiary and the Trustee are hereinafter each sometimes
referred to individually as a "Party" and collectively as the "Parties").
W I T N E S S E T H
WHEREAS, the Grantor and the Beneficiary have entered into nine
100% Quota Share Retrocession Agreements, copies of which are attached as
Exhibit A hereto (the "Retrocession Agreements");
WHEREAS, the Beneficiary desires the Grantor to secure payments of
all amounts at any time and from time to time owing by the Grantor to the
Beneficiary under or in connection with the Retrocession Agreements;
WHEREAS, the Grantor desires to transfer to the Trustee for deposit
to a trust account (the "Trust Account") assets in order to secure payments by
the Grantor under or in connection with the Retrocession Agreements;
WHEREAS, the Trustee has agreed to act as trustee hereunder, and to
hold such assets in trust in the Trust Account for the sole use and benefit of
the Beneficiary; and
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WHEREAS, this Agreement is established for the sole use and benefit
of the Beneficiary and for the purposes of setting forth the duties and powers
of the Trustee with respect to the Trust Account and the relative rights and
obligations of the Parties hereto;
NOW, THEREFORE, for consideration of the premises and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Parties hereby agree as follows:
SECTION 1. CREATION AND DEPOSIT OF ASSETS TO THE TRUST ACCOUNT.
(a) The Grantor shall establish and maintain the Trust Account
for the benefit of the Beneficiary as security for the obligations of the
Grantor under the Retrocession Agreements. The Trust Account shall be in a form
reasonably satisfactory to the Beneficiary and, except as otherwise expressly
provided herein, shall comply in all material respects with the requirements
under
Maryland Insurance Law applicable to trust funds established for credit
for reinsurance purposes. The Trustee shall administer the Trust Account in its
name as Trustee for the Beneficiary. The Trust Account shall be subject to
withdrawal by the Beneficiary solely as provided herein.
(b) (i) On the date hereof, the Grantor shall deposit Qualifying
Assets into the Trust Account equal to all payments and proceeds received by the
Grantor as Initial Section A Premium and Initial Section B Premium (in each case
as defined in the Retrocession Agreements) in respect of all Reinsurance
Contracts (as defined in the Retrocession Agreements). The list of assets so
deposited is set forth on Exhibit B hereto, as amended from time to time. In
addition, Grantor shall deposit Qualifying Assets into the Trust Account equal
to all payments received by Grantor under Sections 4.01(b) and 4.02(b) of the
Retrocession Agreements, if any, following determination of the Final Section A
Premium and Final Section B
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Premium or the Arbitrated Final Section A Premium and/or the Arbitrated Final
Section B Premium, as the case maybe (each as defined in the Retrocession
Agreements). All assets received in the Trust Account are hereinafter referred
to as "Assets".
(ii) As of the end of each calendar quarter, the Grantor
shall calculate the fair market value of the Assets held in the Trust Account as
of the last day of such quarter (such amount, the "Ending Asset Value") and the
aggregate loss, loss adjustment expense reserves, unearned premium reserves,
ceding commission and other reserves related to the Reinsurance Contracts as
reported in the statutory financial statements filed by the Grantor with the
Maryland Insurance Administration, as of the last day of such quarter (the
"Ending Reserves") and shall provide such calculation to the Beneficiary within
five days of the filing of such statutory financial statements with the
Maryland
Insurance Administration. Calculation of the Ending Reserves shall exclude the
aggregate loss, loss adjustment expense reserves, unearned premium reserves,
ceding commission and other reserves related to any Reinsurance Contract
underwritten by the manager in accordance with the terms of Article III(a) of
the Underwriting Management Agreement between Beneficiary and Grantor, as
manager, dated as of the date hereof ("New Business").
(iii) The Ending Reserves, calculated so as to exclude
reserves with respect to New Business, as provided in Section 1(b)(ii) hereof,
shall be reduced by any increase in reserves during such calendar quarter due to
reserve strengthening or adverse development in the reserves recognized by the
Grantor in its statutory financial statements during such calendar quarter (as
so reduced, the "Adjusted Ending Reserves"). The excess of the Adjusted Ending
Reserves over the Ending Asset Value, if any, shall be the "Excess Reserves". To
the extent the Adjusted Ending Reserves exceed the Ending Asset Value, the
Grantor promptly shall deposit
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sufficient Qualifying Assets with a fair market value equal to such excess. For
the avoidance of doubt, it is understood that to the extent such excess is due
to adverse development with respect to the related reserves, Grantor shall not
be required to make any additional deposit of Qualifying Assets into the Trust
Account. To the extent the Ending Asset Value exceeds the Adjusted Ending
Reserves, the Grantor may withdraw Assets with a fair market value equal to the
amount of such excess.
(c) Upon receipt of the quarterly calculation from the Grantor,
the Beneficiary shall have the right to reasonably object to such calculation
and to offer a reasonable proposal for the amount of the reserves described in
Section 1(b) hereof. If the parties in good faith are not able to resolve the
disagreement within two weeks of the Beneficiary's indication of disagreement,
the parties shall mutually agree upon an independent actuarial firm to determine
an appropriate level of aggregate reserves as described in Section 1(b) hereof
with respect to the Reinsurance Contracts, such level to be no more than the
amount proposed by the Beneficiary and no less than the amount reported by the
Grantor, and both parties agree to be bound by such determination. The fees and
expenses of the actuarial firm shall be shared equally by the Grantor and the
Beneficiary.
(d) The Grantor shall retain the investment discretion with
respect to the assets in the trust, provided, however, that all assets held in
the trust shall be invested consistently with the Investment Guidelines (the
"Investment Guidelines") attached to the Discretionary Investment Advisory
Agreement dated as of [ ] by and among Alliance Capital Management L.P.,
Platinum Underwriters Holdings, Ltd., Platinum Underwriters Bermuda, Ltd.,
Platinum Re (UK) Limited, Grantor, Platinum Regency Holdings and Platinum
Underwriters Finance, Inc.
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(e) The Grantor shall be permitted to liquidate the trust at the
earlier of (i) such time as the Trustee receives notice from the Grantor and the
Beneficiary that the Grantor's obligations under all of the Retrocession
Agreements have been met or are terminated or waived or (ii) such time as the
Trustee receives notice from the Grantor that the Adjusted Ending Reserves so
reported by the Grantor do not exceed $100 million as of two successive calendar
year ends. In such event, the Trustee shall, within 10 days, transfer to the
Grantor any Assets remaining in the Trust Account.
(f) The Beneficiary shall bear the costs and expenses of the
Trustee.
(g) The Trustee shall have no responsibility to determine whether
the Assets in the Trust Account are sufficient to secure the Grantor's
liabilities under the Retrocession Agreements or whether they represent
Qualifying Assets.
SECTION 2. WITHDRAWAL OF ASSETS FROM THE TRUST ACCOUNT.
(a) Without notice to the Grantor, the Beneficiary shall have the
right, at any time and from time to time, notwithstanding anything to the
contrary contained in the Retrocession Agreements, to withdraw from the Trust
Account, upon written notice to the Trustee (the "Withdrawal Notice"), such
assets as are specified in such Withdrawal Notice. The Beneficiary need present
no statement or document in addition to a Withdrawal Notice in order to withdraw
any Assets; nor is said right of withdrawal or any other provision of this
Agreement subject to any conditions or qualifications not contained in this
Agreement.
(b) Upon receipt of a Withdrawal Notice, the Trustee shall
immediately take the steps necessary to transfer absolutely all right, title and
interest in the Assets specified in such
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Withdrawal Notice and shall deliver physical custody of such assets to or for
the account of the Beneficiary.
(c) Subject to paragraph (a) of this Section 2 and to Section 4
of this Agreement, in the absence of a Withdrawal Notice, the Trustee shall
allow no substitution or withdrawal of any Asset from the Trust Account.
(d) The Trustee shall have no responsibility whatsoever to
determine that any Assets withdrawn from the Trust Account pursuant to this
Section 2 are withdrawn in compliance with the Retrocession Agreements, or will
be used and applied in the manner contemplated by Section 3 of this Agreement.
SECTION 3. APPLICATION OF ASSETS.
(a) The Beneficiary hereby covenants to the Grantor that it shall
use and apply any withdrawn Assets, without diminution because of the insolvency
of the Beneficiary or the Grantor, for the following purposes only:
(i) to pay or reimburse the Beneficiary for the Grantor's share
under the Retrocession Agreements regarding any losses and allocated loss
expenses paid by the Beneficiary but not recovered from the Grantor, and
unearned premiums due to the Beneficiary if not otherwise paid by the Grantor,
or for other amounts due to the Beneficiary, if not otherwise paid by the
Grantor, in accordance with the terms of the Retrocession Agreements;
(ii) to make payment to the Grantor of any amounts held in the
Trust Account that exceed 100% of the actual amount required to fund the
Grantor's entire Obligations (as hereinafter defined), and
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(iii) except in the event of a liquidation of the trust under
Section 1(e) hereof, where the Beneficiary has received a Termination Notice (as
hereinafter defined) pursuant to Section 10 of this Agreement and where all or a
portion of the Grantor's Obligations remain unliquidated and undischarged ten
days prior to the Termination Date (as hereinafter defined), to withdraw amounts
equal to such Obligations and deposit such amounts in a separate account, in the
name of the Beneficiary, in any Qualified United States Financial Institution
(as defined herein), apart from its other assets, in trust for the uses and
purposes specified in subparagraphs (i) and (ii) of this Section as may remain
executory after such withdrawal and for any period after such Termination Date.
For the purposes of this subparagraph (iii), the phrase "the Trust Account" in
subparagraph (ii) of this Section shall be deemed to read "the separate account"
established pursuant to this subparagraph (iii),
(iv) For purposes of this Section 3, all Assets shall be valued at
their current fair market value.
SECTION 4. REDEMPTION, INVESTMENT AND SUBSTITUTION OF ASSETS.
(a) The Trustee shall surrender for payment all maturing Assets
and all Assets called for redemption (and provide written notice to the
Beneficiary to that effect) and deposit the principal amount of the proceeds of
any such payment into the Trust Account.
(b) From time to time, at the written order and direction of the
Grantor, any instruction or order concerning such investments or substitutions
of securities being referred to herein as an "Investment Order", the Trustee
shall invest Assets in the Trust Account in Qualifying Assets.
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(c) From time to time, the Grantor may direct the Trustee to
substitute Qualifying Assets for other Qualifying Assets held in the Trust
Account at such time. The Trustee shall have no responsibility whatsoever to
determine the value of such substituted securities or that such substituted
securities constitute Qualifying Assets.
(d) The Trustee shall not allow any substitutions or withdrawals
of Assets from the Trust Account, except on (i) written instructions from the
Beneficiary, or (ii) a call on or the maturity of any trust Asset if the Trustee
provides written notice to the Beneficiary and pays the proceeds from the Asset
into the Trust Account.
(e) All investments and substitutions of securities referred to
in paragraphs (b) and (c) of this Section 4 shall be in compliance with the
relevant limitations in "Qualifying Assets", as set forth in Section 11 of this
Agreement. The Trustee shall have no responsibility whatsoever to determine that
any Assets in the Trust Account are or continue to be Qualifying Assets. The
Trustee shall execute Investment Orders and settle securities transactions by
itself or by means of an agent or broker. The Trustee shall not be responsible
for any act or omission, or for the solvency, of any such agent or broker unless
said act or omission is the result, in whole or in part, of the Trustee's
negligence, willful misconduct or lack of good faith.
(f) Any loss incurred from any investment pursuant to the terms
of this Section 4 shall be borne exclusively by the Trust Account. The Trustee
shall not be liable for any loss due to changes in market rates or penalties for
early redemption.
SECTION 5. THE INCOME ACCOUNT.
All payments of interest and dividends actually received in respect
of Assets in the Trust Account shall be distributed by the Trustee to the
Grantor within [10] days following
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the end of each calendar month. The Grantor shall provide the Trustee with the
appropriate wiring instructions for such distributions.
SECTION 6. RIGHT TO VOTE ASSETS.
(a) The Trustee shall forward all annual and interim stockholder
reports and all proxies and proxy materials relating to the Assets in the Trust
Account to the Grantor. The Grantor shall have the full and unqualified right to
vote any Assets in the Trust Account.
SECTION 7. ADDITIONAL RIGHTS AND DUTIES OF THE TRUSTEE.
(a) The Trustee shall receive Assets and hold the Assets in a
safe place;
(b) The Trustee shall determine that the assets are in a form
that the Beneficiary, or the Trustee on direction of the Beneficiary, may
negotiate whenever necessary, without consent or signature from the Grantor or
any other person or entity;
(c) The Trustee shall provide to the Grantor and the Beneficiary
a statement of all Assets in the Trust Account on its inception at the end of
each calendar quarter;
(d) The Trustee shall notify the Grantor and the Beneficiary,
within 10 days, of any deposits to or withdrawals from the Trust Account;
(e) The Trustee shall hold the Assets in the Trust Account at the
Trustee's office in the United States;
(f) The Trustee may deposit any Assets in the Trust Account in a
book-entry account maintained at the Federal Reserve Bank of [ ] or in
depositories such as the Depository Trust Company. Assets may be held in the
name of a nominee maintained by the Trustee or by any such depository.
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(g) The Trustee shall accept and open all mail directed to the
Grantor or the Beneficiary in care of the Trustee.
(h) Upon the request of the Grantor or the Beneficiary, the
Trustee shall promptly permit the Grantor or the Beneficiary, their respective
agents, employees or independent auditors to examine, audit, excerpt, transcribe
and copy, during the Trustee's normal business hours, any books, documents,
papers and records relating to the Trust Account or the Assets.
(i) The Trustee is authorized to follow and rely upon all
instructions given by applicable officers named in incumbency certificates
furnished to the Trustee from time to time by the Grantor and Beneficiary,
respectively, and by attorneys-in-fact acting under written authority furnished
to the Trustee by the Grantor or the Beneficiary, including, without limitation,
instructions given by letter, facsimile transmission, telegram, teletype,
cablegram or electronic media, if the Trustee believes such instructions to be
genuine and to have been signed, sent or presented by the proper party or
parties. The Trustee shall not incur any liability to anyone resulting from
actions taken by the Trustee in reliance in good faith on such instructions. The
Trustee shall not incur any liability in executing instructions (i) from an
attorney-in-fact or (ii) from any officer of the Grantor of the Beneficiary
named in an incumbency certificate delivered hereunder prior to receipt by it of
a more current certificate.
(j) The duties and obligations of the Trustee shall only be such
as are specifically set forth in this Agreement, as it may from time to time be
amended, and no implied duties or obligations shall be read into this Agreement
against the Trustee. The Trustee shall only be liable for its own negligence,
willful misconduct or lack of good faith.
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(k) No provision of this Agreement shall require the Trustee to
take any action which, in the Trustee's reasonable judgment, would result in any
violation of this Agreement or any provision of law.
(l) The Trustee may confer with counsel of its own choice in
relation to matters arising under this Agreement and shall have full and
complete authorization from the other Parties hereunder for any action taken or
suffered by it under this Agreement or under any transaction contemplated hereby
in good faith and in accordance with opinion of such counsel.
(m) The invasion of the trust corpus to pay compensation to, or
reimburse the expense of, the Trustee is hereby prohibited.
(n) The Trustee shall deliver to the Beneficiary written notice
of termination at least 30 days before termination of the Trust Account.
SECTION 8. THE TRUSTEE'S COMPENSATION, EXPENSES AND INDEMNIFICATION.
(a) The Beneficiary shall pay the Trustee, as compensation for
its services under this Agreement, a fee at rates determined by the Trustee and
agreed to by the Beneficiary, from time to time and communicated in writing to
the Beneficiary. The Beneficiary shall pay or reimburse the Trustee for all of
the Trustee's reasonable expenses and disbursements in connection with its
duties under this Agreement (including attorney's fees and expenses), except any
such expense, or disbursement as may arise from the Trustee's negligence,
willful misconduct or lack of good faith. The Grantor shall indemnify, defend
and save harmless the Trustee from all loss or expense (including attorney's
fees and expenses) arising out of or in connection with (i) its execution and
performance of this Agreement, except to the extent that such loss, liability or
expense is due to the negligence, willful misconduct or lack of good faith
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of the Trustee, or (ii) its following any instructions or other directions from
the Grantor, except to the extent that its following any such instructions or
direction is expressly forbidden by the terms hereof. Anything in this Agreement
to the contrary notwithstanding, in no event shall the Trustee be liable for
special, indirect or consequential loss or damage of any kind whatsoever
(including but not limited to lost profits) except for such special, indirect or
consequential loss arising out of the Trustee's own negligence, willful
misconduct or lack of good faith. The Grantor hereby acknowledges that the
foregoing indemnities shall survive the resignation of the Trustee or the
termination of this Agreement and hereby grants the Trustee a lien, right of
set-off and security interest in the funds in the Income Account for the payment
of any claim for indemnity hereunder.
(b) No Assets shall be withdrawn from the Trust Account or used
in any manner for paying compensation to, or reimbursement or indemnification
of, the Trustee.
SECTION 9. RESIGNATION OR REMOVAL OF THE TRUSTEE.
(a) The Trustee may resign at any time by giving not less than 90
days' written notice thereof to the Beneficiary and to the Grantor, such
resignation to become effective only on the acceptance of appointment by a
successor trustee and the transfer to such successor trustee of all Assets in
the Trust Account in accordance with paragraph (b) of this Section 9.
(b) Upon receipt of the Trustee's notice of resignation, the
Grantor and the Beneficiary shall appoint a successor trustee. Any successor
trustee shall be a Qualified United States Financial Institution and shall not
be a Parent, a Subsidiary or an Affiliate of the Grantor or the Beneficiary.
Upon the acceptance of the appointment as trustee hereunder by a successor
trustee and the transfer to such successor trustee of all Assets in the Trust
Account, the
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resignation of the Trustee shall become effective. Thereupon, such successor
trustee shall succeed to and become vested with all the rights, powers,
privileges and duties of the Trustee, and the Trustee shall be discharged from
any future duties and obligations under this Agreement, but the Trustee shall
continue after its resignation to be entitled to the benefits of the indemnities
provided herein for the Trustee.
(c) The Grantor may remove the Trustee at any time by giving not
less than 90 days' written notice thereof to the Beneficiary and to the Trustee,
such removal to become effective only on the acceptance of appointment by a
successor trustee and the transfer to such successor trustee of all Assets in
the Trust Account in accordance with paragraph (d) of this Section 9.
(d) Upon receipt of the Grantor's notice of removal, the Grantor
and the Beneficiary shall appoint a successor trustee. Any successor trustee
shall be a Qualified United States Financial Institution and shall not be a
Parent, a Subsidiary or an Affiliate of the Grantor or the Beneficiary. Upon the
acceptance of the appointment as trustee hereunder by a successor trustee and
the transfer to such successor trustee of all Assets in the Trust Account, the
removal of the Trustee shall become effective. Thereupon, such successor trustee
shall succeed to and become vested with all the rights, powers, privileges and
duties of the Trustee, and the Trustee shall be discharged from any future
duties and obligations under this Agreement, but the Trustee shall continue
after its removal to be entitled to the benefits of the indemnities provided
herein for the Trustee.
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SECTION 10. TERMINATION OF THE TRUST ACCOUNT.
(a) The Trust Account and this Agreement, except as provided in
Section 1(e) hereof and except for the indemnities provided herein, may be
terminated only after (i) the Grantor and the Beneficiary have given the Trustee
written notice of their intention to terminate the Trust Account (the "Notice of
Intention"), and (ii) the Trustee has given the Grantor and the Beneficiary the
written notice specified in paragraph (b) of this Section 10. The Notice of
Intention shall specify the date on which the notifying Party intends the Trust
Account to terminate (the "Proposed Date").
(b) Within ten Business Days following receipt by the Trustee of
the Notice of Intention, the Trustee shall give written notification (the
"Termination Notice") to the Beneficiary and the Grantor of the date (the
"Termination Date") on which the Trust Account shall terminate. The Termination
Date shall be (a) the Proposed Date (or if not a Business Day, the next Business
Day thereafter), if the Proposed Date is at least 30 days but no more than 45
days subsequent to the date the Termination Notice is given; (b) 30 days
subsequent to the date the Termination Notice is given (or if not a Business
Day, the next Business Day thereafter), if the Proposed Date is fewer than 30
days subsequent to the date the Termination Notice is given; or (c) 45 days
subsequent to the date the Termination Notice is given (or if not a Business
Day, the next Business Day thereafter), if the Proposed Date is more than 45
days subsequent to the date the Termination Notice is given.
(c) On the Termination Date, upon receipt of written approval of
the Beneficiary, the Trustee shall transfer to the Grantor any Assets remaining
in the Trust Account, at which time all liability of the Trustee with respect to
such Assets shall cease.
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SECTION 11. INSOLVENCY OF GRANTOR.
(a) Notwithstanding any other provision in this Agreement, if the
Grantor has been declared insolvent or placed into receivership, rehabilitation,
liquidation, or similar proceedings under the laws of
Maryland, the Trustee
shall comply with any order of the regulatory authority with oversight over the
Trust Account or court of competent jurisdiction directing the Trustee to
transfer to such regulatory authority or other designated receiver all of the
assets in the Trust Account.
(b) The assets so transferred shall be applied in accordance with
the priority statutes of the state in which the Trust Account is established
applicable to the assets of insurance companies in liquidation.
(c) If the regulatory authority with oversight over the Trust
Account determines that the assets held in the Trust Account or any part of the
assets are not necessary to satisfy the claims of the Beneficiary, the assets or
any part of the assets shall be returned to the Trustee for distribution in
accordance with this Agreement.
SECTION 12. DEFINITIONS.
Except as the context shall otherwise require, the following terms
shall have the following meanings for all purposes of this Agreement (the
definitions to be applicable to both the singular and the plural forms of each
term defined if both such forms of such term are used in this Agreement):
The term "Affiliate" with respect to any corporation shall mean a
corporation which directly, or indirectly through one of more intermediaries,
controls or is controlled by, or is under common control with, such corporation.
The term "control" (including the related terms
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"controlled by" and "under common control with") shall mean the ownership,
directly or indirectly, or more than fifty percent (50%) of the voting stock of
a corporation.
The term "Business Day" shall mean any day on which the offices of
the Trustee in [ ] are open for business.
The term "Expenses" shall mean the Trustee's reasonable expenses
and disbursements in connection with its duties under this Agreement (including
reasonable attorney's fees and expenses) not including any such expense, or
disbursement as may arise from the Trustee's negligence, willful misconduct or
lack of good faith.
The term "Obligations" shall mean, with respect to the Retrocession
Agreement, (a) reinsured losses and allocated loss expenses paid by the
Beneficiary, but not recovered from the Grantor, (b) reserves for reinsured
losses reported and outstanding, (c) reserves for reinsured losses incurred but
not reported, and (d) reserves for allocated reinsured loss expenses and
unearned premiums.
The term "Parent" shall mean an institution that, directly or
indirectly, controls another institution.
The term "person" shall mean and include an individual, a
corporation, a partnership, an association, a trust, an unincorporated
organization or a government or political subdivision thereof.
The term "Qualified United States Financial Institution" shall have
the meaning provided in COMAR 31.05.08.08.
The term "Qualifying Assets" shall mean and include any security
that conforms with the criteria set forth in the Investment Guidelines.
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The term "Subsidiary" shall mean an institution controlled,
directly or indirectly, by another institution.
SECTION 13. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance
with the laws of the State of
Maryland without regard to its choice of laws
principles.
SECTION 14. GRANTOR'S TAX STATUS.
The Grantor shall provide the Trustee with a Certificate of Foreign
Status on Form W-8 or its Tax Identification Number (TIC) as assigned by the
Internal Revenue Service, as applicable.
SECTION 15. SUCCESSORS AND ASSIGNS.
No Party may assign this Agreement or any of its obligations
hereunder without the prior written consent of the other Parties; PROVIDED,
HOWEVER, that this Agreement shall inure to the benefit of and bind those who,
by operation of law, become successors to the Parties, including, without
limitation, any liquidator, rehabilitator, receiver or conservator and any
successor merged or consolidated entity and PROVIDED FURTHER that, in the case
of the Trustee, the successor trustee is eligible to be a trustee under the
terms hereof.
SECTION 16. SEVERABILITY.
In the event that any provision of the Agreement shall be declared
invalid or unenforceable by any regulatory body or court having jurisdiction,
such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining portions of this Agreement.
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SECTION 17. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement among the Parties,
and there are no understandings or agreement, conditions or qualifications
relative to this Agreement which are not fully expressed in this Agreement.
SECTION 18. AMENDMENTS.
This Agreement may be modified or otherwise amended, and the
observance of any term of this Agreement may be waived, if such modification,
amendment or waiver is in writing and signed by all of the Parties.
SECTION 19. NOTICES, ETC.
Unless otherwise provided in this Agreement, all notices,
directions, requests, demands, acknowledgments and other communications required
or permitted to be given or made under the terms hereof shall be in writing and
shall be deemed to have been duly given or made on the date received when
addressed as follows:
If to the Grantor: Platinum Underwriters Reinsurance, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Fax No.:
If to the Beneficiary: Mountain Ridge
Vermont
[ ]
Attention: President
Fax No.:
If to the Trustee: [Name of Trustee]
[Address]
Attention:
Fax No.:
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Each Party may from time to time designate a different address for
notices, directions, requests, demands, acknowledgments and other communications
by giving written notice of such change to the other Parties. All notices,
directions, requests, demands, acknowledgments and other communications relating
to the Beneficiary's approval of the Grantor's authorization to substitute
Assets and to the termination of the Trust Account shall be in writing and may
not be made or given by prepaid telex, telegraph or telecopier.
SECTION 20. HEADINGS.
The headings of the Sections and the Table of Contents have been
inserted for convenience of reference only, and shall not be deemed to
constitute a part of this Agreement.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each
of which when so executed and delivered shall constitute an original, but such
counterparts together shall constitute one and the same Agreement.
SECTION 22. MERGERS, CONSOLIDATIONS.
Any corporation into which the Trustee in its individual capacity
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee in its individual capacity shall be a party, or any corporation to which
substantially all the corporate trust business of the Trustee in its individual
capacity may be transferred, shall be the Trustee under this
Trust Agreement
without further act.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-19-
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed and delivered by their respective officers thereunto duly
authorized as of the date first above written.
PLATINUM UNDERWRITERS REINSURANCE, INC.
As Grantor
By:
----------------------------------
Title:
-----------------------------
MOUNTAIN RIDGE INSURANCE COMPANY
As Beneficiary
By:
----------------------------------
Title:
-----------------------------
and
[NAME OF TRUSTEE]
As Trustee
By:
----------------------------------
Title:
-----------------------------
-20-
EXHIBIT A
100% Quota Share Retrocession Agreements
Dated as of ____________, 2002
EXHIBIT B
List of Assets Deposited
to the Trust Account
[to come]
