TRUST AGREEMENT
Trust Agreement ("Agreement") made this 24th day of October, 2002, by and
among MIIX Insurance Company, an insurance company domiciled in New Jersey
(hereinafter the "Grantor"), Swiss Reinsurance America Corporation, a
corporation organized and existing under the laws of the State of New York for
itself and on behalf of its underwriting manager Swiss Re Underwriters Agency
Inc. (such insurer and its successors by operation of law, including, without
limitation, any rehabilitator, receiver, conservator, or liquidator thereof
being hereinafter referred to as the "Beneficiary") and Mellon Bank N.A., a
national banking association organized and existing under the laws of the United
States (the "Trustee").
W I T N E S S E T H:
WHEREAS, Grantor and Beneficiary have entered into certain Reinsurance
Agreements listed in Schedule "A", whereby Grantor, as Reinsurer, has agreed to
indemnify Beneficiary, as cedent, against loss (hereinafter referred to as the
"Reinsurance Agreement"); and
WHEREAS, Grantor and Beneficiary desire to create a reinsurance trust
account, qualified as such under New York State Insurance Department Regulation
No. 114, to hold assets as security for the performance by Grantor of its
Obligations (as such term is defined in the aforementioned Regulation No. 114)
under the Reinsurance Agreement.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged the parties agree as follows:
ARTICLE I
DEPOSITS
Section 1.01. Grantor hereby establishes a trust account (the "Trust Account")
with the Trustee for the sole use and benefit of Beneficiary, upon the terms and
conditions hereinafter set forth. This Agreement is not subject to conditions or
qualifications except as provided herein.
Section 1.02. The Trustee is and its lawfully appointed successors are
authorized and shall have power to receive such securities and other property
("Assets") as Grantor from time to time may transfer or remit to or vest in said
Trustee or place in or under said Trustee's control, and to hold, invest,
reinvest, manage and dispose of the same for the uses and purposes and in the
manner and according to the provisions hereinafter set forth. All such trusted
Assets at all times shall be maintained as a trust account, separate and
distinct from all other assets, and shall be continuously kept within the United
States of America.
Section 1.03. (a) Assets deposited in the Trust Account by Grantor and
investments and reinvestments thereof shall consist only of currency of the
United States of America, certificates of deposit issued by a United States bank
and payable in currency of the United States of America and government
obligations or corporate obligations of the types
permitted under the provisions of Section 1404(a), subsections (1) and (2), of
the New York Insurance Law provided that such investments are issued by an
institution that is not the parent, subsidiary or affiliate of either Grantor or
Beneficiary ("Authorized Investments"). Only investments that are safekept or
principally traded in the United States shall be Authorized Investments.
(b) The Grantor hereby represents and warrants (i) that any Assets transferred
by the Grantor to the Trustee for deposit to the Trust Account will be in such
form that the Beneficiary whenever necessary may, and the Trustee upon direction
by the Beneficiary will be able to, negotiate any such Assets without consent or
signature from the Grantor or any person or entity, other than a Central
Depository (as such term is hereinafter defined in Section 5.03), in accordance
with the terms of this Agreement and (ii) that all Assets transferred by the
Grantor to the Trustee for deposit to the Trust Account shall consist only of
cash and other Authorized Investments.
Section 1.04. (a) Grantor shall, from time to time hereafter as requested,
execute assignments or endorsements in blank of all securities or other property
standing in Grantor's name which are delivered to the Trustee to form a part of
the Trust Account so that, whenever necessary, Trustee can negotiate any such
Assets without the consent or signature of Grantor or any other person or entity
other than a Central Depository. Any Assets received by the Trustee which are
not in such proper negotiable form shall not be accepted by the Trustee and
shall be returned to Grantor as unacceptable. In addition, the Trustee may hold
assets of the Trust Account in bearer form or in its own name or that of a
nominee.
(b) The Grantor shall transfer to the Trustee, for deposit to the Trust Account,
the Authorized Investments set forth on Schedule "B" hereto.
ARTICLE II
WITHDRAWALS
Section 2.01. (a) The Beneficiary shall have the right, without notice to the
Grantor, at any time and from time to time, to withdraw from the Trust Account,
upon written notice to the Trustee (the "Withdrawal Notice"), such amounts or
Assets as are specified in such Withdrawal Notice. The Withdrawal Notice shall
(i) specify the amounts and/or Assets to be delivered and (ii) any conditions of
delivery for such Assets. The Beneficiary need present no statement or document
other than the Withdrawal Notice in order to withdraw Assets.
(b) Upon receipt of a Withdrawal Notice, the Trustee shall immediately take any
and all steps reasonably necessary to transfer the Assets held in the Trust
Account as specified in such Withdrawal Notice, and shall deliver such amount or
Assets to or for the account of the Beneficiary as specified in such Withdrawal
Notice.
(c) In the absence of a Withdrawal Notice the Trustee shall allow no withdrawal
of any Asset from the Trust Account except for payments permitted under Section
4.01.
Section 2.02. The Beneficiary agrees and covenants to the Grantor that it shall
only withdraw the amounts or Assets from the Trust Account to satisfy amounts
due without
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diminution because of the insolvency of Beneficiary or Grantor, for the
following purposes only:
(a) to pay or reimburse the Beneficiary for the Grantor's share under the
Reinsurance Agreement for any losses and allocated loss expenses paid by
Beneficiary but not recovered from the Grantor or for unearned premiums due to
Beneficiary, if not otherwise paid by Grantor;
(b) to make payment to Grantor of any amounts held in the Trust Account that
exceed 102% of the actual amount required to fund Grantor's Obligations (as
defined in New York State Insurance Department Regulation No. 114) under the
Reinsurance Agreement; or
(c) where Beneficiary has received Termination Notice of the Trust Account
pursuant to Section 7.01 hereof, and where Grantor's Obligations under the
Reinsurance Agreement remain unliquidated and undischarged ten (10) business
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 Beneficiary in any United States bank or trust company, apart from its
general assets, in trust for such uses and purposes specified in subsections (a)
and (b) above, as may remain executory after such withdrawal and for any period
after the Termination Date.
Section 2.03. The Trustee shall have no responsibility whatsoever to determine
that any amounts or Assets withdrawn from the Trust Account pursuant to Article
II hereof will be used and applied in a manner consistent with Section 2.02
above.
ARTICLE III
MANAGEMENT OF AUTHORIZED INVESTMENTS
Section 3.01. The responsibility for directing investment of Assets in the Trust
Account shall be that of the Grantor, and the Trustee shall not be required to
take any action with respect to the investment of the Assets in the Trust
Account.
Section 3.02. The Trustee shall permit substitutions of Assets in the Trust
Account upon a written direction signed by the Grantor and the Beneficiary
specifying the Assets to be released and the Assets to be substituted. The
Trustee shall have no duty to determine that the Assets are Authorized
Investments.
Section 3.03. The Trustee shall have no responsibility to determine whether the
Assets are sufficient to secure the Grantor's Obligations under the Reinsurance
Agreement. Furthermore, the Trustee shall have no responsibility whatsoever to
determine the value of any Assets that have been substituted or whether such
substituted Assets constitute Authorized Investments.
Section 3.04. The Grantor and Beneficiary agree that all investments of
securities referred to in Sections 3.01, 3.02 and 3.03 above shall be in
compliance with the relevant provisions of the New York Insurance Law, as set
forth in the definition of "Authorized Investments" in Section 1.03 of this
Agreement. The Trustee shall not be responsible for any act or omission of any
domestic depository or clearing corporation other than itself. When the Trustee
is directed to deliver Assets against payment, or payment against the
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delivery of Assets, delivery or payment will be made in accordance with
generally accepted market practices. Any loss incurred from any investment
pursuant to the terms of this Article III shall be borne exclusively by the
Trust Account.
ARTICLE IV
TRUST ACCOUNT MANAGEMENT
Section 4.01. All dividends, interest and other income resulting from the
investment of the Assets ("Income") in the Trust Account shall be the property
of the Grantor. The Grantor shall direct the Trustee in writing as to the dollar
amount of Income to be paid to it, and the Trustee shall be entitled to follow
such direction without verification. The Trustee may deduct the Trustee's
compensation and expenses, as provided in Section 5.04 of this Agreement, from
Income.
Section 4.02. The Trustee will forward to the extent the Trustee receives any
annual and interim stockholder reports and any proxies and proxy materials
relating to the Assets in the Trust Account to the Grantor or its designee. The
Grantor or its designee shall have the full and unqualified right to vote any
Assets in the Trust Account. The Trustee is authorized to open all mail directed
to the Grantor, or its designee received by the Trustee.
Section 4.03. The Trustee will surrender for payment all maturing Assets called
for redemption and deposit the principal amount of the proceeds of any such
payment received by the Trustee to the Trust Account.
Section 4.04. (a) The Trustee shall furnish to Grantor and the Beneficiary an
accounting of all Assets in the Trust Account upon its inception and thereafter
at intervals no less frequent than as of the end of each calendar quarter. Such
accountings shall be given as soon as practicable, but in no event later than
fifteen (15) calendar days after such date.
(b) The Trustee shall furnish to the Grantor and the Beneficiary a notice of any
deposits to or withdrawals from the Trust Account within ten (10) calendar days
of the occurrence of such event.
ARTICLE V
PROVISIONS RELATING TO THE TRUSTEE
Section 5.01. Before accepting any Asset for deposit to the Trust Account, the
Trustee shall determine that such Asset is in such form that the Beneficiary
whenever necessary may, or the Trustee upon direction by the Beneficiary may,
negotiate such Asset without consent or signature from the Grantor or any person
or entity (other than a Central Depository and the Trustee) in accordance with
the terms of this Agreement.
Section 5.02. The Trustee shall have no responsibility whatsoever to determine
that any Assets in the Trust Account are or continue to be Authorized
Investments nor whether such Assets remain in negotiable form (due to change in
law or otherwise).
Section 5.03. The Trustee may maintain the Assets in book-entry form with, and
utilize the
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services of, any Federal Reserve Bank, The Depository Trust Company, The
Participant's Trust Company, or similar domestic depositories ("Central
Depository") as appropriate. Assets may be held in the name of a nominee
maintained by the Trustee or any Central Depository. Subject to the Trustee's
standard of care set forth in Section 5.05 of this Agreement, the Trustee shall
not be responsible for any losses resulting from the deposit or maintenance of
securities or other property (in accordance with market practice, custom, or
regulation) with any Central Depository.
Section 5.04. The Trustee shall be entitled to receive a fee as compensation for
its services hereunder, computed and payable at such time and rate as may be
agreed from time to time in writing between Grantor and the Trustee. Grantor
shall be solely responsible for the payment of the fee of the Trustee and all
reasonable costs and expenses of the Trustee, including reasonable fees and
expenses of counsel (except as same shall be proven to arise from the Trustee's
own negligence, willful misconduct or lack of good faith). The Trust Account
shall not be utilized for the payment of such fees and expenses except that the
Trustee may deduct its fees, expenses and costs from Income.
If the Trustee advances cash or securities ("Advances") to the Trust
Account for the purpose of facilitating any disbursement pursuant to the terms
of this Agreement, any Assets at any time held for the Trust Account shall be
security therefor and the Trustee shall, be entitled to collect from the Trust
Account sufficient cash for reimbursement of such Advances provided that the
value of the Trust Account immediately prior to any such advance is not
diminished by such reimbursement, and if such cash is insufficient, upon prior
notice to the Beneficiary and the Grantor, dispose of the Assets of the Trust
Account to the extent necessary to obtain such reimbursement, again provided
that, the value of the Trust Account immediately prior to any such advance is
not diminished by such reimbursement. In addition, to the extent that the
Trustee advances funds to the Trust Account for disbursements or to effect the
settlement of authorized purchase transactions, the Trustee shall be entitled to
collect from the Grantor, and the Grantor agrees to pay to the Trustee, an
amount equal to what would have been earned on the sums advanced (an amount
approximating the "federal funds" interest rate).
Notwithstanding the foregoing, it is acknowledged and agreed that the Trust
Account Assets shall not be, or constitute security for, the payment of any fees
or expenses for which the Grantor is responsible hereunder.
In the event that the Grantor fails to pay any fees, expenses or any other
amount payable by it to the Trustee hereunder as and when required, the Grantor
agrees that the Trustee shall have the right, without further notice or demand,
to set off against, and to appropriate and apply to such amount owing, any
indebtedness, liability or obligation of any nature owing to the Grantor by the
Trustee in its capacity as a national banking association (except for any such
indebtedness, liability or obligation owing pursuant to this Agreement)
including, but not limited to, all deposits, and/or custodial accounts now or
hereafter maintained by the Grantor with the Trustee. The rights of the Trustee
provided herein are in addition to all other rights of set-off and all other
rights and remedies which the Trustee may otherwise have against the Grantor at
law, in equity or otherwise, and nothing in this Agreement shall be deemed a
waiver or prohibition of, or restriction upon, the Trustee's rights of set-off
against the Grantor.
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Section 5.05. The Trustee shall be responsible for the safekeeping and
administration of the Trust Account in accordance with provisions of this
Agreement. The Trustee shall not be liable nor responsible for any loss to the
Trust Account unless such loss shall be caused by its own negligence, willful
misconduct or lack of good faith. The Grantor hereby indemnifies the Trustee and
holds it harmless from and against any loss, liability and expense and costs
(including reasonable fees and expenses of counsel) incurred or made by the
Trustee and arising in connection with the performance of its obligation
pursuant to the terms of this Agreement.
In performing its duties under this Agreement, the Trustee shall exercise
the same care and diligence that a professional trustee engaged in the banking
or trust company industry and having professional expertise in financial and
securities processing transactions and custody would observe in these affairs.
Notwithstanding any other provision hereof, neither the Trustee nor any of its
directors, officers, agents or employees shall be liable to the Beneficiary or
the Grantor for any action taken or omitted to be taken by it or them hereunder
or in connection herewith except for its or their own negligence, willful
misconduct or lack of good faith. No party shall be liable for any incidental,
consequential or punitive damages.
Section 5.06. Upon the written request of the Grantor or the Beneficiary (at
such party's own expense), 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 in the Trust Account.
Section 5.07. Unless otherwise provided in this Agreement, the Trustee is
authorized to follow and rely upon all notices and instructions given by persons
named in incumbency certificates or letters of authorization furnished to the
Trustee from time to time by the Grantor and the Beneficiary, respectively, and
by any attorneys-in-fact acting under written authority furnished to the Trustee
by the Grantor or the Beneficiary including, without limitation, notices and
instructions given by letter, telephone, facsimile transmission, telegram,
teletype, cablegram or electronic media, if the Trustee believes such notices
and 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 any person
or entity resulting from actions taken or not taken by the Trustee in reliance
in good faith on such notices and instructions. The Trustee shall not incur any
liability in executing or not executing instructions (i) from any
attorney-in-fact prior to receipt by it or notice of the revocations of the
written authority of the attorney-in-fact or (ii) from any person purporting to
represent the Grantor or the Beneficiary named in an incumbency certificate or
letter of authorization delivered hereunder prior to receipt by it of a more
current certificate or letter.
Section 5.08. 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 be liable only for its own negligence,
willful misconduct or lack of good faith.
Section 5.09. 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.
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Section 5.10. Whenever in the administration of the Trust Account created by
this Agreement the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
thereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a statement or certificate signed by or on behalf of Grantor and/or
Beneficiary and delivered to the Trustee and said statement or certificate shall
be full warrant to the Trustee for any action taken, suffered or omitted by it
on the faith thereof; but in its discretion, the Trustee may, in lieu thereof,
accept other evidence of the fact or matter or may require such other or
additional evidence as it may deem reasonable.
Section 5.11. Except as otherwise expressly provided in this Agreement, any
statement, instruction, certificate, notice, request, consent, approval, or
other instrument to be delivered or furnished by Grantor and/or Beneficiary
shall be sufficiently executed if executed in the name of Grantor and/or
Beneficiary by such officer or officers of Grantor and/or Beneficiary or by such
other agent or agents of Grantor and/or Beneficiary as may be designated in a
resolution or letter of advice by Grantor and/or Beneficiary. Written notice of
such designation by Grantor and/or Beneficiary shall be filed with the Trustee.
The Trustee shall be protected in acting upon any written statement or other
instrument made by such officer or agent (or purported officer or agent) of
Grantor and/or Beneficiary with respect to the authority conferred therein.
Section 5.12. The Trustee may consult with counsel selected by it who may be
counsel for Grantor or Beneficiary. The opinion of said counsel shall be full
and complete authority and protection for the Trustee with respect to any action
taken, suffered or omitted by it in good faith and in accordance with the
opinion of said counsel other than with respect to the withdrawal of Assets by
the Beneficiary.
Section 5.13. The Trustee hereby accepts the trust herein created and declared
upon the terms herein expressed.
ARTICLE VI
RESIGNATION OR REMOVAL OF TRUSTEE
Section 6.01. (a) The Trustee may resign at any time upon delivery of a written
notice of resignation to the Grantor and the Beneficiary, effective not less
than ninety (90) calendar days after receipt by the Grantor and the Beneficiary
of such written notice and that the Trustee may be removed by the Grantor by
delivery of a written notice of removal to the Trustee and the Beneficiary,
effective not less than ninety (90) calendar days after receipt by the Trustee
and the Beneficiary of the written notice, provided that no such resignation or
removal shall be effective until a successor Trustee has been duly appointed and
approved by the Beneficiary and the Grantor and all Assets in the trust have
been duly transferred to the new Trustee in accordance with paragraph (b) of
this Section 6.01.
(b) Upon receipt of the Trustee's notice of resignation or upon the Trustees
receipt of the Grantor's notice of removal, the Grantor and the Beneficiary
shall promptly appoint a successor Trustee. Any successor Trustee shall be a
bank that is a member of the Federal Reserve System or chartered in the State of
New York and shall not be a parent,
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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
resignation or 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 resigning or removed Trustee, and the
resigning or removed Trustee shall be discharged from any future duties and
obligations under this Agreement, but the resigning or removed Trustee shall
continue after such resignation or removal to be entitled to the benefits of the
indemnities provided herein for the Trustee. The resigning or removed Trustee
shall have the right to demand a final accounting of the Trust Account.
ARTICLE VII
TERMINATION OF THE AGREEMENT
Section 7.01. (a) The Trust Account and this Agreement, except for the
indemnities provided herein, may be terminated only after (i) the Grantor or the
Beneficiary has given the Trustee written notice of its 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 7. The Notice of Intention shall specify the date on which the
notifying Party intends the Trust Account to terminate (the "Proposed Date").
(b) Within three (3) business days following receipt by the Trustee of the
Notice of Intention, the Trustee shall give written notice (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 (i)
the Proposed Date if the Proposed Date is at least thirty (30) calendar days but
no more than forty five (45) calendar days subsequent to the date the
Termination Notice is given; (ii) thirty (30) calendar days subsequent to the
date the Termination Notice is given, if the Proposed Date is fewer than thirty
(30) calendar days subsequent to the date the Termination Notice is given; or
(iii) forty five (45) calendar days subsequent to the date the Termination
Notice is given, if the Proposed Date is more than forty five (45) calendar 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 responsibility and liability of the Trustee
with respect to such Assets shall cease.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
Section 8.01. The provisions of and validity and construction of this Agreement
and any amendments hereto shall be governed by, and construed in accordance with
the laws of the State of New York and the Trust Account created hereunder shall
be administered in accordance with the laws of said State without regard for
conflict of law principles.
Section 8.02. This Agreement may be modified or amended and any provisions
herein waived only upon the written amendment or waiver signed by all of the
Parties hereto.
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Section 8.03. In the event any provision of this Agreement shall be held invalid
or unenforceable for any reason, such invalidity or unenforceability shall not
affect the remaining parts of this Agreement.
Section 8.04. This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and the counterparts shall constitute but
one and the same instrument, which shall be sufficiently evidenced by any one
counterpart.
Section 8.05. No Party may assign this Agreement or any of its rights or
obligations hereunder, whether by merger, consolidation, sale of all or
substantially all of its assets, liquidation, dissolution or otherwise, except
as expressly permitted by this Agreement.
Section 8.06. Unless otherwise provided in this Agreement, all notices,
directions, requests, demands, acknowledgements 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 (a)(i) when
delivered personally, (ii) when made or given by prepaid telex, telegraph or
telecopier, or (iii) in the case of mail delivery, upon the expiration of three
(3) business days after any such notice, direction, instructions, orders,
request, demand, acknowledgement or other communication shall have been
deposited in the United States mail for transmission by first class mail,
postage prepaid, or upon receipt thereof, whichever shall first occur and (b)
when addressed as follows:
If to the Grantor: _____________________________
_____________________________
_____________________________
With a copy to: _____________________________
_____________________________
_____________________________
If to the Beneficiary: Swiss Reinsurance America Corporation
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn.: Controller
If to the Trustee: Mellon Bank, N.A.
Xxx Xxxxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Insurance Custody Manager
Each Party may from time to time designate a different address for notices,
directions, requests, demands, acknowledgements and other communications by
giving written notice of such change to the other Parties. All notices,
directions, requests, demands, acknowledgements and other communications
relating to the approval of authorization to
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substitute Assets and to the termination of the Trust Account shall be in
writing.
Section 8.07. The headings of the Articles and Sections have been inserted for
convenience of reference only and shall not be deemed to constitute a part of
this Agreement.
Section 8.08. Each of the parties represents and warrants to the other parties
that it has full authority to enter into this Agreement upon the terms and
conditions hereof and that the individual executing this Agreement on its behalf
has the requisite authority to bind such party to this Agreement.
MIIX Insurance Company
By: ___________________________
Name:
Title:
Swiss Reinsurance America Corporation
By: ___________________________
Name:
Title:
Mellon Bank, N.A.
By: ___________________________
Name:
Title:
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