Exhibit 10.24
MASTER STANDBY LETTER OF CREDIT REIMBURSEMENT AGREEMENT
THIS AGREEMENT is made as of the 2nd day of November, 2001 ("EFFECTIVE
DATE") by and between:
(i) FLEET NATIONAL BANK, a national banking association with its
main offices in Boston located at 000 Xxxxxxx Xxxxxx Xxxxxx,
Xxxxxxxxxxxxx 00000, including its U.S. and overseas branches,
subsidiaries and such other entities controlled by, controlling or
under common control with Fleet National Bank (collectively, the
"Bank"); and
(ii) RENAISSANCE REINSURANCE LTD., a company organized under the
laws of Bermuda, and having its principal office at Xxxxxxxxxxx Xxxxx,
0-00 Xxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxx, and any other subsidiary of
RENAISSANCERE HOLDINGS LTD. ("RenRe") that from time to time executes
and delivers an Accession Agreement (each individually, the "Customer"
and collectively, the "Customers").
IN CONSIDERATION OF the Bank opening from time to time, at any
Customer's request, a Credit, each Customer hereby agrees with the Bank as
follows:
1. The following terms have the following meanings:
"Accession Agreement" means a written assumption of the rights and
obligations of the Customers by a subsidiary of RenRe in substantially the form
of Appendix A hereto.
"Application" means a written application by any Customer to the Bank
for the issuance of a standby letter of credit for such Customer and includes
all modifications to the Application made with such Customer's written or oral
agreement or consent.
"Collateral" has the meaning provided in the Pledge Agreements.
"Credit" means any letter of credit issued pursuant to an Application
including, without limitation, the Existing Letters of Credit, including any
amendment to any such Credit.
"Existing Letters of Credit" means the standby letters of credit issued
by the Bank at the request of Renaissance Reinsurance Ltd. and listed on
Schedule 1 hereto "International Standby Practices" means International Standby
Practices (ISP98), International Chamber of Commerce Publication No. 590, or any
successor code of standby letter of credit practices among banks adopted by the
Bank in the ordinary course of its business as a standby letter of credit issuer
and in effect at the time of reference.
"Pledge Agreements" means collectively (i) that certain Amended and
Restated Pledge Agreement, dated as of November 2, 2001, by and between
Renaissance Reinsurance Ltd. and the Bank and (ii) any Pledge Agreement entered
into by and between any other Customer and the Bank on or after the date hereof.
"RenRe Credit Agreement" means the Credit Agreement, dated as of
October 5, 1999 among RenRe as borrower, various financial institutions as
lenders, Deutsche Bank AG, as LC issuer and syndication agent, Fleet National
Bank as co-agent, Bank of America, National Association, as administrative
agent, and Banc of America Securities LLC, as lead arranger and book manager, as
amended and supplemented (including by waiver or consent) from time to time;
provided, however, that if such Credit Agreement shall cease for any reason to
be in full force and effect, "RenRe Credit Agreement" shall mean such Credit
Agreement in the form in which it existed immediately prior to the time it
ceased to be in full force and effect, except with respect to the definition of
"Material Subsidiary" which shall be such definition as in the Credit Agreement
in the form which exists on the date hereof.
"Secured Obligations" has the meaning provided in the Pledge Agreement.
2. Each Customer will pay the Bank, in United States currency, the amount of
each drawing under the Credit in respect of standby letters of credit
issued for the account of such Customer, together with interest,
commissions, all customary fees, expenses and other charges, and all other
disbursements or payments by the Bank pursuant to the Credit or this
Agreement, such payment to be made on demand with interest from the date of
payment under the Credit to the date of payment by such Customer to the
Bank. If a drawing or other amount is payable in foreign currency, the
applicable Customer will pay the Bank the equivalent of the amount of such
drawing or other amount in United States currency, at the Bank's then
selling rate for cable transfers to the place of payment or to the place of
the Bank's settlement of its obligation, as the Bank may require. If there
is no rate of exchange for effecting such cable transfer, the applicable
Customer will pay the Bank on demand the amount in United States currency
equivalent to the Bank's actual cost of settlement, with interest on the
amount in United States currency payable by the such Customer from the date
of settlement to the date of payment by such Customer. Unless otherwise
agreed, interest and commission payable hereunder shall be at such rate as
the Bank may deem appropriate; provided however, that the rate of interest
on default on any of the Customer's obligations hereunder will be equal to
the Base Rate. The Base Rate is the rate of interest announced from time to
time by the Bank at its head office as its Base Rate. Any amount that at
any time may be owing by any Customer to the Bank pursuant to this
Agreement may be charged against any funds held by the Bank for the account
of such Customer.
3. Each Customer will promptly examine (a) the copy of the Credit sent to it
by the Bank and (b) all documents delivered to the Customer from time to
time by the Bank. The Customer will, within a reasonable period of time not
to exceed two business days following receipt thereof, notify the Bank of
any irregularity, any discrepancies to which the Customers object or any
other claim of non-compliance with any Customers' instructions, and include
in such notice a statement of the nature of such irregularity,
discrepancies or non-compliance. Failure of the Customers to give such
notice and statement to the Bank within such time precludes the Customers
from asserting any such irregularity, discrepancies or other claim against
the Bank and its correspondents.
2
4. Each Customer hereby agrees to indemnify the Bank and its correspondents
from and to hold them harmless against any and all claims, loss, liability,
or damage, including reasonable attorneys' fees, howsoever arising from or
in connection with any Credit issued for the account of such Customer other
than any claim by the Customer against the Bank for any actual loss or
damage directly arising out of the failure of the Bank to perform its
obligations under this Agreement or the Credit. Under no circumstances will
the Bank be liable to the Customers for any special, consequential,
punitive, exemplary, incidental or other damages or for lost profits. The
agreements in this paragraph will survive any payment under or termination
or cancellation of this Agreement.
5. The Customers will pay the Bank on demand all charges, costs, and expenses,
including reasonable attorneys fees, incurred or paid by the Bank in
connection with the exercise of any right, power, or remedy hereunder, or
in the enforcement thereof.
6. Each Customer shall pay to the Bank in respect of each standby letter of
credit issued for such Customer hereunder a non-refundable fee in an amount
equal to thirty one hundredths of one percent (0.30%) per annum of the face
amount of such standby letter of credit. Such fees shall be due and payable
quarterly in advance commencing on the date of issuance of such letter of
credit and quarterly thereafter. Each Customer shall also pay to the Bank
the Bank's customary issuance, amendment and other administrative
processing fees in respect of such standby letters of credit.
7. Each subsidiary of RenRe that is or becomes a Customer under the terms
hereof shall be liable to the Bank only for those amounts that are incurred
by it hereunder or under the Pledge Agreement executed by such Customer and
shall have no liability for the obligations of any other Customer, it being
acknowledged and agreed by the Bank that the execution and delivery of this
Agreement, the Pledge Agreement and any Accession Agreements by more than
one such subsidiary is for purposes of convenience only and that each
Customer is deemed to have entered into a completely separate reimbursement
and security arrangement with the Bank and with no other parties; it being
understood, however, that upon the occurrence of a default hereunder or the
failure of any Customer to comply with the terms of this Agreement, any
Pledge Agreement or any documents or agreements executed and/or delivered
in connection herewith (the "Credit Documents") such default or failure; to
comply shall, if the aggregate amount owed hereunder by such Customer is in
excess of $5,000,000 and if such Customer is a "Material Subsidiary" as
defined in the RenRe Credit Agreement, constitute a default by all
Customers hereunder and shall enable the Bank to exercise its right and
remedies hereunder, under the Pledge Agreements and the other Credit
Documents, at law and in equity.
8. Subject to the provisions of (Section)7 hereof, upon (1) failure of any
Customer to reimburse any amount drawn under the Credit within one business
day after demand therefor, (2) failure of any Customer to pay any other
amount due hereunder or under the Pledge Agreement or any other Credit
Documents, (3) the occurrence of an Event of Default under any 3 Pledge
Agreement, (4) failure of any Customer to perform any of its other
obligations under this Agreement or any other Credit Documents and
continuance of such failure for more than fifteen days after notice thereof
is given to such Customer, (5) failure of any
3
Customer to perform any of its other obligations to the Bank or any of its
affiliates under any .other agreement, or any of its obligations for
borrowed money or in respect of any extension of credit in, an aggregate
amount in excess of $5,000,000, or other accommodation or under any capital
or operating lease or derivative transaction in an aggregate amount in
excess of $5,000,000, (6) the insolvency, dissolution, termination of
existence, suspension oi.' business, appointment of a receiver of any part
of the property of, assignment for the benefit of creditors by, or the
commencement of any case or proceeding under any law relating to bankruptcy
or insolvency by or against any Customer, (7) the issuance of or
application for a writ or order of attachment or garnishment against any
Collateral or a substantial part of the property or assets of any Customer,
or (8) any governmental authority taking possession of any substantial part
of the property of any Customer or assuming control over the affairs or
operations of any Customer or (9) the occurrence of an "Event of Default"
under the terms of the RenRe Credit Agreement, thereupon, the Bank may,
without notice or demand, declare any and all of the obligations and
liabilities, direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, of such Customer to the Bank under
this Agreement, to be immediately due and payable, and the Bank will have
all of the rights and remedies provided hereunder, under the Pledge
Agreement and the other Credit Documents and by law,,The Customers hereby
acknowledge and agree that all of their obligations (whether for principal,
interest, fees, expenses or other charges) to the Bank, now existing
(including Credits which may have been issued prior to the effectiveness of
this Agreement but are extended from time to time pursuant to evergreen or
similar clauses or arrangements during the effectiveness of this Agreement)
or hereafter arising under or pursuant to the Credit or this Agreement, are
Secured Obligations and, consequently, are secured by the terms of the
Pledge Agreements for the benefit of the Bank.
9. Neither the Bank nor its correspondents shall be in any way responsible for
performance by any beneficiary of its obligations to the Customers, for the
accuracy, genuineness, or effect of any documents, presented under the
Credit or for any other matters for which an issuer is not responsible
under the International Standby Practices.
10. The Bank may treat any administrator, executor, conservator, trustee in
bankruptcy, debtor in possession, assignee for benefit of creditors,
liquidator, receiver, or other claimed successor of the beneficiary of the
Credit as if such claimed successor were an authorized transferee of the
beneficiary.
11. The Customers hereby authorize the Bank to (a) select a person subject to
the applicable Customer's approval to advise or confirm the Credit, to
receive a presentation, negotiate, incur a deferred payment obligation,
accept a draft or effect a payment under the Credit, or to transfer the
Credit, (b) authorize or restrict such person from so acting, and (c) waive
any such restriction.
12. All directions and correspondence relating to the Credit are to be sent at
the Customers' risk. The Bank does not assume any responsibility for any
inaccuracy, interruption, error,
4
or delay in transmission or delivery by post, telegraph, or cable, for any
inaccuracy of translation or for any interpretation of technical terms.
13. This Agreement and a request or consent to any modification change,
amendment, waiver, or any other action pursuant to this Agreement, will be
binding upon the Customers and their respective heirs, executors,
administrators, successors, and assigns and will inure to the benefit of
and be enforceable by the Bank, its successors, and assigns. In the event
that any provision hereof is determined by a court of competent
jurisdiction to be invalid, such invalidity will not affect any other
provision of this Agreement. The Customers represent and warrant that the
execution, delivery, and performance by the Customers hereof has been duly
authorized by all necessary corporate and/or other action and that the
making and performance hereof by the Customers does not and will not
contravene the terms of any existing law, agreement, or instrument by which
any Customer is bound or to which any Customer is subject.
14. The failure of the Bank to enforce at any time any provision hereof will
not be construed to be a waiver of such provision or of the right of the
Bank thereafter to enforce any such provision.
15. The Credit will be subject to the International Standby Practices. Except
to the extent it is otherwise expressly agreed to and without prejudice to
any other provisions of this Agreement in favor of the Bank and its
correspondents, observance by the Bank and its correspondents of the
International Standby Practices will constitute compliance with the Credit
and this Agreement. In the event the Credit is subject to any laws, or any
correspondents of the Bank observe other rules of letter of credit practice
for the Credit, at variance with the International Standby Practices, any
action, inaction, or omission on the part of the Bank or its correspondents
in connection with the Credit, and in good faith reliance on such laws or
other practice rules, will be deemed to be in compliance with the Credit
and this Agreement. The Customers hereby agree to indemnify the Bank and
its correspondents from and to hold them harmless against any and all loss,
liability, damage, cost, or expense (including reasonable attorneys' fees)
incurred thereby. 16. This Agreement is made in the Commonwealth of
Massachusetts and shall be deemed to be a contract under seal to be
governed by and construed in accordance with the laws of said Commonwealth,
The Customers consent to the non-exclusive jurisdiction of federal and
state courts in the Commonwealth of Massachusetts in connection with any
dispute arising out of this Agreement or the Credit, and the Customers also
consent to service of process relating thereto. The Bank's rights, powers,
and remedies specified herein are cumulative and are in addition to those
otherwise created or existing by law or other agreement. The Customers
waive all suretyship defenses to the extent applicable.
16. This Agreement is made in the Commonwealth of Massachusetts and shall be
deemed to be a contract under seal to be governed by and contrued in
accordance with the laws of said Commonwealth, The Customers consent to the
non-exclusive jurisdiction of federal and state courts in the Commonwealth
of Massachusetts in connection with any dispute arising out of this
Agreement or the Credit, and the Customers also consent to service of
process relating thereto. The Bank's rights, powers, and remedies specified
herein are cumulative and are in addition to those otherwise created or
existing by law or other agreement. The Customers waive all suretyship
defenses to the extent applicable.
17. Any communication to be made hereunder shall (i) be made in writing, but
unless otherwise stated, maybe made by telex, or facsimile transmission,
and (ii) be made or delivered to the address of the party receiving notice
which is set forth below its signature hereto (unless such party has by
five (5) days written notice specified another address),
5
and shall be deemed made or delivered, when dispatched, left at that
address, or five (5) days after being mailed, postage prepaid, to such
address.
18. EACH OF THE CUSTOMERS AND BANK MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER CREDIT DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION,
ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF BANK
RELATING TO THE ADMINISTRATION OF THE STANDBY LETTERS OF CREDIT OR
ENFORCEMENT OF THE CREDIT DOCUMENTS, AND AGREE THAT NO PARTY WILL SEEK TO
CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL
CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH OF THE
CUSTOMERS HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OF THE
CUSTOMERS CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF BANK HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT BANK WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR BANK TO ACCEPT THIS AGREEMENT AND ISSUE THE STANDBY
LETTERS OF CREDIT.
19. The Customers hereby agree that service of all writs, complaints, process
and summonses in any such suit, action or proceeding may be made upon
Xxxxxxx Xxxx & Xxxxxxxxx, Attention: Xxxx X. X'Xxxxxxxx, Esquire ("Process
Agent"), with an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000. The Customers hereby irrevocably appoint the Process Agent
their true and lawful attorney-in-fact in their name, place and xxxxx to
accept such service of any and all such writs, complaints, process and
summonses. The Customers agree that any election by the Bank to give notice
of any such service to the Customers shall not impair or affect the
validity of such service or of the judgment based thereon. The Customers
hereby further irrevocably consent of the service of process in any suit,
action or proceeding in said courts by the mailing or hand delivery thereof
to the Customers in the manner described in (Section) 17 hereof. Nothing
herein shall in any way be deemed to limit the ability of the Bank to serve
any such writ, complaint, process or summons in any other manner permitted
by applicable law or to obtain jurisdiction over the Customers in such
other jurisdictions, and in such manner, as may be permitted by applicable
law.
20. If, for the purpose of obtaining judgment in any court or obtaining an
order enforcing a judgment, it becomes necessary to convert any amount due
under this Agreement into any currency other than U.S. dollars (hereinafter
called the "Alternate Currency"), then
6
the conversion shall be made at the Bank's spot rate of exchange for buying
U.S. dollars with the Alternate Currency, in accordance with normal banking
procedure, prevailing at the Bank's close of business on the business day
next preceding the day on which the judgment is given or (as the case may
be) the order is made. In the event that there is a difference between the
rate of exchange on the basis of which the amount of such judgment or order
is determined and the rate of exchange prevailing on the date of payment,
the Customers hereby agree to pay such additional amount as may be
necessary to ensure that the amount paid is the amount of such Alternate
Currency which permits the Bank to purchase the amount of U.S. dollars due
under this Agreement when the judgment or order is issued at the Bank's
spot rate of exchange for buying U.S. dollars with the Alternate Currency,
in accordance with normal banking procedures, prevailing at the Bank's
opening business on the date of payment. Any amount due from the Customers
to the Bank under the second sentence of this paragraph will be due as
separate debt of the Customers to the Bank and shall not be affected by any
judgment or order being obtained for any other sum. The covenant contained
in this paragraph shall survive the payment in full of all of the other
obligations of the Customers hereunder.
21. All payments by the Customer hereunder shall be made without setoff or
counterclaim and free and clear of and without deduction for any foreign or
domestic taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restriction or conditions of any nature now
or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Customers are required by law to make such deduction or withholding. Except
as otherwise expressly provided in this paragraph, if any such obligation
is imposed upon any Customer with respect to any amount payable by it
hereunder or under any of the other Credit Documents, such Customer will
pay to the Bank, on the date on which such amount is due and payable
hereunder or under such other Credit Documents, such additional amount in
U.S. Dollars as shall be necessary to enable the Bank to receive the same
net amount which the bank would have received on such due date had no such
obligation been imposed upon such Customer. The Customers will deliver
promptly to the Bank, certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by the
Customers hereunder or under such other Credit Document.
IN WITNESS WHEREOF, each of the parties hereto have caused their
respective duly authorized representatives to execute and deliver this
Agreement as of the date first written above.
RENAISSANCE REINSURANCE LTD. FLEET NATIONAL BANK
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxxx Xxxxx
XXXX X. XXXXXX Xxxxxxxx Xxxxx
Vice President and Treasurer Portfolio Manager
---------------------------- Address: 000 Xxxx Xxxxxx
Address: Renaissance House Hartford, Connecticut
0-00 Xxxx Xxxxxxxx
0
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
8
APPENDIX A
----------
ACCESSION AGREEMENT
1. By the execution and delivery hereof,
(i) the undersigned subsidiary (the "NEW CUSTOMER") of RenaissanceRe
Holdings Ltd. ("RENRE") hereby accedes to the rights, and assumes the
obligations, of a Customer under the Master Standby Letter of Credit
Reimbursement Agreement, dated as of November 2, 2001 (the "Reimbursement
Agreement"), between Fleet National Bank (the "BANK"), Renaissance
Reinsurance Ltd., and certain other subsidiaries of RenRe;
(ii) the New Customer agrees to execute and deliver to Bank a Pledge
Agreement substantially in the form of Exhibit 1 attached hereto, together
with a control agreement and such other documents, agreements, and/or
instruments requested by the Bank; and
(iii) the Bank hereby accepts the addition of the New Customer as a
Customer under the Reimbursement Agreement and as Pledgor under the Pledge
Agreement executed and delivered by the New Customer.
2. The New Customer hereby makes the representations and warranties of the
Customer contained in the Reimbursement Agreement and the Pledge Agreement
executed and delivered by the New Customer.
3. Capitalized terms used herein that are not otherwise defined have the
respective meanings ascribed thereto by the Reimbursement Agreement or the
Pledge Agreement executed and delivered by the New Customer, as applicable.
4. This Agreement is effective as of _____________________, 200__.
IN WITNESS WHEREOF, each of the parties hereto have caused their respective
duly authorized representatives to execute and deliver this Agreement as of the
effective date set forth above.
[NAME OF NEW CUSTOMER] FLEET NATIONAL BANK
BY: BY:
------------------------------- -----------------------------
NAME: XXXXX X. XXXXXX
TITLE: DIRECTOR
EXHIBIT 1
---------
FORM OF PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT
This AMENDED AND RESTATED PLEDGE AGREEMENT, dated as of November 2, 2001 (the
"PLEDGE AGREEMENT"), amends and restates the Pledge Agreement, dated as of
December 18, 1997, between RENAISSANCE REINSURANCE, LTD., a corporation
organized under the laws of Bermuda with an address at 0-00 Xxxx Xxxxxxxx,
Xxxxxxxx, Xxxxxxx (the "PLEDGOR"), and FLEET NATIONAL BANK, a national banking
association with an office at 000 Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 (the
"PLEDGEE").
1. PLEDGE. In accordance with the terms and conditions hereof, the
Pledgor hereby pledges and assigns to the Pledgee, and hereby grants a security
interest to the Pledgee in, all of the Collateral (as hereinafter defined) and
all proceeds thereof.
2. SECURITY. This Agreement is made with the Pledgee to secure all of
the Secured Obligations of the Pledgor to the Pledgee. As used herein, the term
"SECURED OBLIGATIONS" means: the full and punctual payment and performance when
due of all liabilities obligations and indebtedness of the Pledgor to the
Pledgee, whether for principal, interest, fees, expenses or otherwise, now
existing or hereafter arising under or pursuant to any Letter(s) of Credit,
including without limitation, any Existing Letters of Credit (as defined in the
Reimbursement Agreement issued by the Pledgee at the request of the Pledgor
under that certain Master Standby Letter of Credit Reimbursement Agreement dated
as of November 2, 2001 (the "REIMBURSEMENT AGREEMENT") by and between the
Pledgor and the Pledgee and certain other parties which may become parties
thereto pursuant to the terms thereof and any other documents, agreements and/or
instruments executed and/or delivered in connection therewith (collectively, the
"CREDIT"), including, without limitation, costs and expenses incurred by the
Pledgee in collecting or enforcing or attempting to collect or enforce the
foregoing.
The Pledgor, at any time and from time to time upon notice to the
Pledgee, may withdraw from the Collateral subject to this Agreement any of the
cash, property or securities constituting such Collateral for the purpose of
substituting items of Collateral or any interest, cash dividends and gains on
the Pledgor's investments; provided, however, that any such withdrawal and
substitution may occur only if no Event of Default (as hereinafter defined) has
occurred and is continuing or would occur as a result thereof.
Collateral which consists of certificated securities, instruments,
deposits, money, accounts or any similar items now or hereafter in the Pledgor's
possession ("POSSESSORY COLLATERAL") will be delivered to the Pledgee
accompanied by an assignment thereof endorsed in blank with stock or bond powers
attached, or endorsed to the order of the Pledgee, as the case may be.
Without limiting the generality of the foregoing, the Pledgor further
agrees as follows:
(a) All Collateral, except Possessory Collateral, shall be held by
Mellon Bank, N.A., as custodian for the Pledgor (the "CUSTODIAN") in securities
account no. XXXX 000 00000 in the name of "Fleet National Bank Pledged
Collateral Account f/a/o Renaissance Reinsurance Ltd." (the "SECURITIES
ACCOUNT"). The Custodian shall be the only entity on whose books the Pledgor
will permit the interest of the Pledgor in the Collateral to appear. The Pledgor
will not replace the Custodian without the prior written consent of the Pledgee.
(b) The Pledgor shall require the Custodian to enter into a
satisfactory control agreement (the "CONTROL AGREEMENT") with respect to any
Collateral in the custody of the Custodian and with respect to which it is
acting as securities intermediary. The Pledgor represents, warrants and agrees
that this Agreement and the transfer of the Collateral to the Custodian in
accordance with the terms hereof, effects transfer or perfection of a security
interest in all Collateral now owned by the Pledgor and will effect transfer or
perfection of a security interest in all Collateral hereafter acquired by the
Pledgor.
(c) If the Pledgee shall at any time so require, all Collateral which
is in book-entry form in the Federal Reserve System ("BOOK-ENTRY COLLATERAL")
shall be delivered in the following manner: The Pledgee shall cause the
appropriate instructions to be entered in the Federal Reserve Book book-entry
system to accomplish a book-entry transfer of all Book-Entry Collateral to a
general account maintained at the Federal Reserve Bank of New York by the
Pledgee in accordance with Subpart 0 of Part 306 or Subparts A, Band C of Part
350, as applicable, of the Regulations of the United States Treasury Department
and any other applicable regulations. The name of the Pledgee shall appear as
the owner of Book-Entry Collateral on the books and records of the Federal
Reserve Bank of New York. Upon receipt of Book-Entry Collateral, the Pledgee
shall promptly send to the Pledgor written confirmation of such receipt, which
confirmation shall identify the type and amount of such Book-Entry Collateral.
(d) The Pledgor agrees that the Collateral in the Securities Account
shall at all times consist of Qualified Securities, which meet the following
criteria (the "QUALIFIED SECURITIES"):
(i) Government Securities defined as obligations of the United States
Treasury and issues of United States agencies quoted daily in The Wall
Street Journal;
(ii) Municipal Bonds defined as bonds issued by municipalities of the
United States and rated by Standard & Poor's Ratings Group, a division of
McGraw Hill, Inc. ("S&P") as "AA " or above;
(iii) Fixed income securities issued by a corporation organized and
existing under the laws of the United States or any state thereof and rated
by S&P as "AA" or above; or
(iv) Investment grade securities and bonds issued by foreign
governments and rated by S&P as "AA" or above.
3. COLLATERAL. For purposes of this Agreement, "Collateral" means all
Financial Assets, Investment Property, Securities Entitlements and other
securities now or hereafter in the Securities Account or any successor or
replacement account and includes all of
-2-
the Pledgor's certificates of deposit, investment company shares, corporate debt
and equity securities (including convertible securities), securities issued or
guaranteed by the United States, any state or political subdivision and any
agency or instrumentality thereof and any securities issued by any foreign
governments, and securities of any other issuer, now owned or hereafter
acquired, all to the extent that the foregoing are credited to the Securities
Account. Collateral shall include, without limitation, the certificates, if any,
representing the Collateral, and all dividends, interest, cash, bank deposits;
securities, investment property, instruments and other property at any time and
from time to time received, receivable or otherwise distributed in respect of or
in exchange for, or as a renewal of, or reinvestment for, or substitution of,
any or all of the Collateral and the proceeds thereof; all securities and
..certificates hereafter transferred or delivered to the Pledgee in substitution
for or in addition to any of the foregoing, all certificates, if any, and
instruments representing or evidencing such securities, together with interest
and all interest, cash, securities, investment property, dividends, instruments
and other property at any time and from time to time received, receivable or
otherwise distributed in respect of or in exchange for or as a renewal of or
reinvestment for any or all thereof and the proceeds of any thereof; and the
Securities Account and any securities, dividends, investment property, cash,
interest and other property from time to time in the Securities Account.
Capitalized terms used herein and not defined herein that are defined in the
Uniform Commercial Code of the Commonwealth of Massachusetts shall have such
defined meanings herein.
4. REPRESENTATIONS AND WARRANTIES. The Pledgor represents, warrants and
agrees that: (a) the Pledgor has good and valid title to the Collateral, free
and clear of any liens, charges or encumbrances thereon or affecting the title
thereto; (b) the Pledgor has good right and lawful authority to pledge, assign,
transfer, deliver, deposit, set over and confirm unto the Pledgee the Collateral
as provided herein and will warrant and defend the title thereto and the
security interest therein conveyed to the Pledgee by this Agreement against all
claims of all persons and will maintain and preserve such security interest; (c)
the execution, delivery and performance of this Agreement and the pledge and/or
delivery of the Collateral to the Pledgee do not and will not contravene the
memorandum of association or byelaws of the Pledgor or any agreement,
commitment, indenture, contract or other obligation or restriction affecting the
Pledgor; (d) this Agreement is the legal, valid and binding obligation of the
Pledgor, enforceable in accordance with its terms; (e) this Agreement will not
violate any provision of law applicable to the Pledgor; and (f) no
authorization, approval, or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the pledge by
Pledgor of the Collateral pursuant to this Agreement or for the execution,
delivery, or performance of this Agreement by Pledgor. The Pledgor covenants
that it will have the like title to and right to pledge any other properly of
the Pledgor at any time hereafter purported to be pledged to the Pledgee
hereunder.
5. EVENTS OF DEFAULT. As used herein, an "Event of Default" shall be
deemed to have occurred upon the occurrence of anyone or more of the following:
(a) any representation or warranty of Pledge made herein shall at any time prove
to have been false in any material respect when made or, (b) the Pledgor shall
default in any material respect in the performance of any term, covenant or
agreement contained in this Agreement and such default shall continue for
fifteen days after the occurrence of such default, (c) any Event of Default
shall have occurred under the Reimbursement Agreement, or (d) if, at any time,
the sum of the Obligations exceeds ninety percent (90%) of the Collateral Value,
and the Pledgor fails, within three (3) business days of such event, to pledge
additional Qualified Securities sufficient to cause the Obligations to be equal
to or less than ninety percent (90%) of the Collateral Value. As used herein,
the term
-3-
"Collateral Value" shall mean the fair market value, as determined by the
Pledgee from time to time, of the Collateral consisting of the Qualified
Securities.
6. VOTING AND OTHER RIGHTS. Unless and until an Event of Default shall
have occurred, the Pledgor shall retain and may exercise all voting rights with
respect to Collateral, and all rights with respect to conversion, exchange,
subscription, option, warrant and other similar rights and privileges pertaining
to Collateral ("Rights"); provided that if an Event of Default occurs, all
Rights shall be exercisable only by or with the prior written consent of the
Pledgee; provided further that the Pledgee shall not have any voting Rights
unless and until it shall have given the Pledgor written notice that such Event
of Default has occurred and that the Pledgee may exercise, or intends to
exercise, any such voting Right, and the Pledgee shall have no duty at any time
whatsoever to exercise any Right and shall not be responsible for any failure to
do so or delay in so doing.
7. REMEDIES UPON AN EVENT OF DEFAULT. If an Event of Default has
occurred, the Pledgee shall have the right to exercise in respect of the
Collateral all the rights and remedies available to a secured party under the
Uniform Commercial Code in effect at the time in the Commonwealth of
Massachusetts and may also, without notice, except as required by law direct
that all or any part of the Collateral and proceeds thereof be applied to the
payment of the Secured Obligations, and the Pledgee may sell the Collateral or
any part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Pledgee's offices or elsewhere, for
cash, on creditor for future delivery, and upon such other terms as the Pledgee
may deem commercially reasonable. The Pledgor acknowledges that the Collateral
is of a type sold in a recognized market, and, accordingly, no notice by the
Pledgee to the Pledgor is required prior to the sale of any Collateral
hereunder. In the event such notice is given, the Pledgee shall not be obligated
to make any sale of Collateral regardless of such notice having been given. The
Pledgee may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
Any cash received by the Pledgee as Collateral and all cash proceeds
received by the Pledgee in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral as contemplated in this
section may, in the discretion of the Pledgee, be held by the Pledgee as
collateral for or then or at any time thereafter applied (after payment of any
expenses) in whole or in part by the Pledgee against, all or any part of the
Secured Obligations in such order as the Pledgee shall elect. Any surplus of
such cash or cash proceeds held by the Pledgee and remaining after payment in
full of all the Secured Obligations shall be paid over to Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
The Pledgee shall not be required to resort to or marshal any present
or future security for, or guaranties of, the obligations secured hereby, or to
resort to any such security or guaranties in any particular order. The Pledgee's
remedies shall be cumulative with all other rights, however existing or arising,
and may be exercised concurrently or separately. Neither failure nor delay on
the Pledgee's part to exercise any right, remedy, power or privilege provided
for herein or by statute or at law or in equity shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other further exercise thereof or the exercise
of any other right, remedy, power or privilege.
-4-
Beyond the exercise of reasonable care to assure the safekeeping of
Possessory Collateral while held in the Pledgee's possession or control, the
Pledgee shall have no duty or liability to preserve rights pertaining to any
Collateral.
8. PLEDGOR'S OBLIGATIONS NOT AFFECTED. The obligations of the Pledgor
under this Agreement shall remain in full force and effect without regard to,
and shall not be impaired or affected by any amendment or modification of or
addition or supplement to the Note or any waiver, consent, extension, indulgence
or other action or inaction in respect of this Agreement or the Credit. This
Agreement and the pledge and security interest granted hereby shall be of no
further force or effect upon the full payment and satisfaction of all of the
Secured Obligations and, immediately thereafter, the Pledgee will release to the
Pledgor all Collateral held hereunder, together with appropriate releases and
discharges of such pledge and security interest.
9. NOTICE. All notices and other communications hereunder shall be in
writing and shall be given in the manner and to the respective addresses
provided above.
10. FURTHER ASSURANCES. The Pledgor will do all such acts, and will
furnish to the Pledgee all such financing statements, certificates, opinions and
other documents, and will do or cause to be done all such other things, as the
Pledgee may reasonably request from time to time in order to give full effect to
this Agreement and to secure, perfect, and protect the rights of the Pledgee
hereunder. Pledgor hereby appoints the Pledgee as the Pledgor's
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor or otherwise, from time to time in the Pledgee's discretion
to take any action and to execute any instrument which the Pledgee may deem
necessary or advisable to accomplish the purposes of this Agreement, including,
without limitation, to indorse in favor of the Pledgee any of the Collateral;
cause the transfer of any of the Collateral in such name as the Pledgee may
direct, cause the issuance of certificates for book-entry and/or uncertificated
securities; renew, extend or roll over any Collateral; to receive, indorse and
collect the Collateral made payable to Pledgor representing any dividend,
interest payment or other distribution in respect of the Collateral or any part
thereof and to give full discharge for the same.
11. COSTS AND EXPENSES. The Pledgor agrees to pay to the Pledgee on
demand any and all reasonable costs and expenses, and to indemnify and hold
harmless the Pledgee from and against any and all claims, demands, damages and
liabilities, that may be incurred or paid by the Pledgee in connection with the
Collateral or the enforcement of this Agreement.
12. MISCELLANEOUS. Neither this Agreement nor any provisions hereof may
be amended, modified, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
amendment, modification, waiver, discharge or termination is sought. The
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the Pledgor and Pledgee. The captions
in this Agreement are for the convenience of reference only and shall not define
or limit the provisions hereof. This Agreement shall be construed and enforced
in accordance with the laws of the Commonwealth of Massachusetts. This Agreement
may be executed simultaneously in several counterparts, each of which will be
deemed an original, but all of which together shall
-5-
constitute one instrument. If any term or provision of this Agreement or the
application thereof to any person, property or circumstance shall to any extent
be invalid or unenforceable, the remainder of this Agreement and the application
of such term or provision to persons, properties and circumstances other than
those as to which it is invalid or unenforceable shall not be affected thereby,
and each term and provision of this Agreement shall be valid and enforced to the
fullest extent permitted by law. This Agreement amends and restates that certain
Pledge Agreement dated December 18, 1997 between the Pledgor and the Pledgee
(the "Original Pledge Agreement"), and this Agreement does not constitute a
release of the Original Security Agreement or of the security interests and
liens granted thereby.
IN WITNESS WHEREOF, the Pledgor and the Pledgee have caused this
Agreement to be duly executed as of the day and year first above-written.
RENAISSANCE REINSURANCE LTD. FLEET NATIONAL BANK
By: By:
----------------------------- -----------------------------
XXXX X. XXXXXX XXXXX X. XXXXXX
VICE PRESIDENT AND TREASURER DIRECTOR
-6-
