Exhibit 10.13
EXECUTION COPY
AMENDED AND RESTATED REINSURANCE TRUST AGREEMENT
THIS REINSURANCE TRUST AGREEMENT (this "Agreement") made this 29th day of
February, 2004, by and among LUMBERMENS MUTUAL CASUALTY COMPANY, an insurer
organized and existing under the laws of the State of Illinois (hereinafter
referred to as "Grantor"), SEABRIGHT INSURANCE COMPANY, a corporation organized
and existing under the laws of Illinois formerly known as Xxxxxx Employers
Insurance Company (hereinafter referred to as "Beneficiary"), and The Bank of
New York, a New York banking corporation (hereafter referred to as the
"Trustee").
RECITALS
WHEREAS, this Agreement is intended to be effective as of September 30,
2003 and amends and restates and replaces in its entirety the Trust Agreement,
dated as of September 30, 2003, Grantor, Beneficiary and Trustee (the "Prior
Agreement"), which Prior Agreement shall be of no further force or effect;
WHEREAS, Grantor and Beneficiary have entered into an Adverse Loss
Development Excess of Loss Reinsurance Agreement effective September 30, 2003
whereby Grantor, as reinsurer, has agreed to indemnify Beneficiary, as cedent,
against loss (hereinafter referred to as the "Reinsurance Agreement");
WHEREAS, the execution and delivery of this Agreement is a condition to
the obligations of the parties to consummate the transactions contemplated by
the Purchase Agreement, dated as of July 14, 2003, pursuant to which all of the
outstanding capital stock of Beneficiary is being sold by Xxxxxx Employers
Group, Inc., a wholly-owned subsidiary of Grantor (as amended, the "Purchase
Agreement"); and
WHEREAS, Grantor and Beneficiary desire to create a trust account.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I.
PROVISIONS RELATING TO THE TRUST ACCOUNT
Section 1.01. Grantor hereby establishes a segregated, non-interest
bearing trust account (the "Trust Account") with Trustee for the sole use and
benefit of Beneficiary, upon the terms and conditions hereinafter set forth. The
Trust Account is not subject to any conditions or qualifications outside this
Agreement. Trustee shall accept and credit to the Trust Account all assets which
shall from time to time be delivered to it for the Trust Account by Grantor's
order or for Grantor's account and, subject to this Agreement, disburse the same
in accordance with Grantor's instructions. Trustee shall not be subject to, nor
required to comply with, any other agreement between the other parties hereto or
to which any such party is a party, even though reference thereto may be made
herein, or to comply with any direction or instruction (other than those
contained herein or delivered in accordance with this Agreement) from any party
hereto or
any entity acting on its behalf. This Agreement is for the exclusive benefit of
the parties hereto and their respective successors hereunder, and shall not be
deemed to give, either express or implied, any legal or equitable right, remedy,
or claim to any other entity or person whatsoever.
Section 1.02. (a) Trustee and its lawfully appointed successors is and
are authorized and shall have power to receive such securities and other
property (herein referred to as the "Assets") as Grantor from time to time may
transfer or remit to or vest in said Trustee or place in the Trustee's hands or
under the Trustee's control, and to hold, invest, reinvest, and dispose of the
same for the uses and purposes and in the manner and according to the provisions
hereinafter set forth. All of the trusteed Assets shall be maintained at all
times in the Trust Account, separate and distinct from all other assets on the
books and records of Trustee.
(b) Trustee shall receive and hold the Assets in a safe place and shall
hold the Assets at Trustee's office in the United States. Trustee may also hold
on deposit portions of the Assets with depositories or subcustodians that
provide handling, clearance, or safekeeping services.
(c) Trustee shall, with Beneficiary's prior approval in Beneficiary's
sole discretion, also have the right to hold property on an uncertificated basis
with the issuer. Trustee shall use the same care with respect to the safekeeping
of Assets held in the Trust Account as it uses in respect of its own similar
property.
Section 1.03. Assets deposited in the Trust Account by Grantor and
investments and reinvestments thereof shall consist only of (a) cash, treasury
bills, treasury notes or any other direct obligations issued by or guaranteed in
full as to principal and interest by the full faith and credit of the United
States of America, (b) certificates of deposit issued by a commercial bank
having capital, surplus and undivided profits of not less than $1,000,000,000
(including Trustee or its affiliates); provided that any such certificates of
deposit that mature more than one year from the date of acquisition must have a
National Association of Insurance Commissioners designation of 1 or 2, (c)
corporate obligations or U.S. government agency securities with a National
Association of Insurance Commissioners designation of 1 or 2 and a maturity no
longer than 5 years, and (d) money market funds (including those of Trustee or
its affiliates) reported by the NAIC SVO on either the U.S. Direct
Obligations/Full Faith and Credit Exempt List or on the Class 1 List, provided
none of the foregoing investments may be issued by an institution that is the
parent, subsidiary, or affiliate of either Grantor or Beneficiary (herein
referred to as "Permitted Investments").
Section 1.04. All Assets held in the Trust Account shall be invested
and reinvested by Trustee in accordance with instructions furnished to Trustee
by such persons or firms listed on Exhibit A to direct the investment by Trustee
of the Assets (herein the "Investment Manager"), provided that all Assets shall
be invested in Permitted Investments. The initial Investment Manager is listed
on Exhibit A hereof and shall be mutually acceptable to Grantor and Beneficiary.
The Investment Manager may be replaced, and a new Investment Manager selected at
any time by Grantor with the approval of Beneficiary in its reasonable
discretion, upon notice to Trustee. Unless and until directed in accordance with
this Agreement by the Investment Manager, Trustee shall not be required to take
any action with respect to the investment or reinvestment of the Assets, and
Trustee shall have no liability for any loss arising from or related to any
investment made in accordance with the terms hereof.
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Section 1.05. Grantor shall, upon execution of this Agreement, and from
time to time thereafter as required, execute assignments or endorsements in
blank or transfer legal title to Trustee of all securities or other property
standing in Grantor's name which are delivered to Trustee to form a part of the
Trust Account so that, whenever necessary, Beneficiary, or Trustee upon
direction by Beneficiary, can renegotiate any such assets without the consent or
signature of Grantor or any other person or entity. Any Assets received by
Trustee that are not in proper negotiable form shall not be accepted by Trustee
and shall be returned to Grantor as unacceptable.
Section 1.06. Securities shall be held in the name of the Trustee or in
a nominee name of Trustee to facilitate the holding and transfer of title on
behalf of Trustee. To effect the transfer of registered securities into the name
of Trustee's nominee, to facilitate the collection of any payment thereon, and
to effect any other action in relation thereto or in order to meet any
requirement thereof, Grantor authorizes Trustee to execute in Grantor's name and
to deliver any instrument determined by Trustee to be appropriate in furtherance
of the purposes hereof, and to guarantee in Trustee's name the signature of
Grantor as to any signature so placed on such instrument.
Section 1.07. (a) From time to time, Trustee may elect, but shall not
be so obligated, to credit the Trust Account with interest, dividends or
principal payments on the payable or contractual settlement date, in
anticipation of receiving same from a payor, central depository, broker, or
other agent employed by Grantor or Trustee. Any such crediting and posting shall
be at Grantor's sole risk, and Trustee shall be authorized to reverse any such
advance posting in the event it does not receive good funds from any such payor,
central depository, broker, or agent of Grantor. Trustee shall not be required
to enforce collection by legal means or otherwise of any item, but shall use
reasonable diligence to make all of such collections as may be effected in the
ordinary course of business.
(b) In accordance with instructions from Grantor, as required by
accepted industry practice or as Trustee may elect in effecting the execution of
Grantor's instructions, any advances of cash or other property that may be made
by Trustee arising from the purchase, sale, redemption, transfer, or other
disposition of Assets of the Trust Account as allowed under this Agreement
against Grantor that create an overdraft in the Trust Account or overdelivery of
Assets shall be deemed a loan by Trustee to Grantor, payable on demand, bearing
interest at the rate customarily charged by Trustee for similar loans.
Section 1.08. Trustee is authorized, without further instructions but
with notice to Beneficiary and Grantor, to exchange securities in temporary form
for securities in definitive form, to effect an exchange of the shares where the
par value of stock is changed, and to surrender securities at maturity or when
advised of earlier call for redemption, against payment therefor in accordance
with accepted industry practice on the condition that the proceeds are paid into
the Trust Account. Trustee shall have no duty to notify Grantor of any rights,
duties, limitations, conditions or other information set forth in any security
(including mandatory or optional put, call and similar provisions), but Trustee
shall forward to Grantor any notices or other documents subsequently received in
regard to any such security. Trustee shall maintain securities received in
bearer form in such form unless instructed by Grantor to exchange the securities
for securities in registered form. If any Assets registered in the name of a
nominee of Trustee or in the nominee of any entity employed by Trustee are
called for partial redemption by
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the issuer of the Assets, Trustee shall allot the called portion to the
respective beneficial holders of the Assets pursuant to fair and equitable
lottery procedures established by Trustee from time to time.
Section 1.09. Where redemption options, tenders or other like
securities have fixed expiration dates, Grantor understands that in order for
Trustee to act, Trustee must receive Grantor's instructions at its offices,
addressed as Trustee may from time to time request, by no later than 9:00 a.m.
(Trustee's local time) at least one business day prior to the last scheduled
date to act with respect thereto (or such earlier date or time as Trustee may
notify Grantor). Absent Trustee's timely receipt of such instruction, the
instruments will expire without liability to Trustee unless Trustee did not,
with due diligence, provide Grantor with timely and appropriate information.
Section 1.10. Trustee shall execute as agent in the name of Grantor all
documents now or hereafter required in respect of Assets held in the Trust
Account. Grantor directs Trustee to disclose Grantor's name, address and
securities positions to issuers of securities held in the Trust Account,
pursuant to SEC rules implementing The Shareholder Communications Act of 1985 or
other applicable law. Under the penalties of perjury, Grantor certifies that the
Taxpayer Identification Number set forth on the last page hereof is correct and
that Grantor is not subject to "backup withholding" under section 3406(a)(1)(c)
of the Internal Revenue Code or any successor provision and will provide to
Trustee an executed W-9 or other appropriate certificate. Grantor agrees to
notify Trustee immediately in writing of any change in the information set forth
in this paragraph.
Section 1.11. For as long as Assets remain in the Trust Account:
(a) Trustee and Beneficiary shall have no voting rights with respect to
the Assets, and Grantor shall be entitled to exercise any and all voting and/or
consensual rights and powers relating or pertaining to the Assets or any part
thereof for any purpose. Grantor shall have the right, at its sole discretion,
to delegate in writing its voting and consensual rights and powers with respect
to the Assets to any other person, including but not limited to, the Investment
Manager.
(b) Trustee shall execute and deliver (or cause to be executed and
delivered) to Grantor all such proxies, powers of attorney, and other
instruments as Grantor may reasonably request for the purpose of enabling
Grantor to exercise the voting and/or consensual rights and powers that Grantor
is entitled to exercise pursuant to subsection (a) above.
Section 1.12. (a) Trustee shall, within ten (10) business days after
the end of each calendar month, submit in writing to Grantor and Beneficiary a
schedule showing the then current market value of the Assets in the Trust
Account as of the end of such calendar month.
(b) Trustee shall allow no substitutions or withdrawals from the Trust
Account, except that Grantor, without the consent of or prior notice to the
Beneficiary, may substitute Permitted Investments for Assets forming a part of
the Trust Account. If Grantor substitutes Permitted Investments for any Assets
forming part of the Trust Account, (i) the then current fair market value of the
Permitted Investments so substituted shall not be less than the then current
fair market value of the Assets withdrawn, and (ii) the then fair market value
of all Permitted
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Investments in the Trust Account shall be equal to the amount required to be
maintained in the Trust Account by the Reinsurance Agreement. Grantor shall
certify to Trustee that the requirements of (i) and (ii) above are met in its
written notice of any such substitution. The amount required to be maintained in
the Trust Account by the Reinsurance Agreement shall be calculated in accordance
with Section 1.13 of this Agreement and submitted in writing to Trustee and
Grantor within five (5) business days after the end of each calendar month by
Beneficiary.
(c) Trustee shall furnish to Grantor and Beneficiary notice of any
deposits to the Trust Account, and shall confirm to both parties all deposits,
substitutions or withdrawals of Assets from the Trust Account within ten (10)
business days of the occurrence of any deposit, withdrawal, or substitution.
Section 1.13. The parties acknowledge that Grantor has deposited into
the Trust Account, concurrently with the execution of the Prior Agreement, cash
in the amount of $1,626,669.00, such amount being acknowledged by Grantor and
Beneficiary as equal to 10% of the Initial Loss Reserves, as that term is
defined in the Reinsurance Agreement (herein referred to as the "Initial
Deposit"). If, at any time after the end of the first calendar quarter after the
Trust Account is established, the fair market value of the Assets, as shown for
the end of the most recent calendar quarter on the schedule submitted by Trustee
to Grantor and Beneficiary pursuant to Section 1.12, is less than the greater of
(the "Minimum Funding Requirement") (i) one hundred two percent (102%) of
Grantor's obligations to Beneficiary under Article IV.A. of the Reinsurance
Agreement, calculated as of such date (assuming that such date were substituted
for December 31, 2011 throughout Article IV.A. of the Reinsurance Agreement)
based on the most recently delivered quarterly report provided to the Grantor
pursuant to Article VI of the Reinsurance Agreement (herein referred to as the
"Obligations"), or (ii) the Initial Deposit, and Beneficiary notifies Grantor
and Trustee of such shortfall specifying the amount thereof, then Grantor shall,
within five (5) business days after receipt of such notification, assign,
convey, transfer, and deliver to Trustee for deposit to the Trust Account an
amount of Permitted Assets having a fair market value on the date of delivery at
least equal to the shortfall.
Section 1.14. Unless Beneficiary has notified Trustee in writing (a
"Notice of Violation") that the requirements of the Reinsurance Agreement, or
this Agreement, concerning the amount of Permitted Investments in the Trust
Account have been violated and such violation is continuing, all
non-extraordinary cash dividends, interest and other income resulting from the
investment of the Assets in the Trust Account shall belong to Grantor, and to
the extent that Trustee collects and receives such non-extraordinary cash
dividends, interest or other income from the Trust Account, it shall (except in
the case of the delivery of a Notice of Violation) pay such income to Grantor,
on Grantor's written direction; provided, however, that Trustee shall have no
obligation with respect to the collection of such income. If a Notice of
Violation has been received by Trustee, then Trustee shall hold all dividends,
interest and other income in the Trust Account and shall not pay such funds to
Grantor unless (i) Beneficiary, in its sole discretion, rescinds such Notice of
Violation in writing or (ii) a mutual determination has been made by Grantor and
Beneficiary that such violation has been cured (and in making any such
determination, both Grantor and Beneficiary agree to act reasonably), in which
case the Trustee shall be notified in writing jointly by Grantor and Beneficiary
of the rescission of such Notice of Violation.
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Section 1.15. (a) Beneficiary and Grantor agree and covenant that
Assets may be withdrawn from the Trust Account to satisfy amounts due (with no
diminution because of the insolvency of either Beneficiary or Grantor) for the
following purposes:
(1) to pay or reimburse Beneficiary for Grantor's Obligations that
have become due and have not otherwise been paid by Grantor when
due;
(2) subject to the limitations contained in Section 1.16, to make
payment to Grantor of any amounts held in the Trust Account to the
extent that the fair market value of Assets in the Trust Account
exceeds the Minimum Funding Requirement determined as of such
time;
(3) where Beneficiary received notification of termination of the
Trust Account and where any portion of Grantor's Obligations under
the Reinsurance Agreement remain unliquidated and not discharged
ten (10) days prior to such termination date, to withdraw amounts
equal to such Obligations and deposit such amounts in a separate
account, in Beneficiary's name in any qualified United States
financial institution as defined in 215 ILCS 5/173.1(3)(B) apart
from its general assets, to hold in trust for such uses and
purposes specified in 1.15(a)(1) above as may remain executory
after such withdrawal and for any period after such termination
date; or
(4) where Trustee is entitled under the terms of Section 2.09 to any
income of the Trust for the payment of any claim of Trustee for
compensation, reimbursement or indemnity hereunder; provided that
the fair market value of Assets in the Trust Account exceeds the
Minimum Funding Requirement determined as of such time.
(b) In the event of impairment or insolvency of Grantor or upon the
entry of an order of conservation, rehabilitation, or liquidation of Grantor by
a court of competent jurisdiction or in the event of appointment of a receiver,
Beneficiary may withdraw an amount equal to Grantor's Obligations and shall hold
such amount, separate from other assets of Beneficiary, for such uses and
purposes specified in 1.15(a)(1) above as may remain executory after such
withdrawal. Failure of Beneficiary to make a withdrawal permitted by this
subsection immediately upon occurrence of the impairment or insolvency of
Grantor or the entry of an order of conservation, rehabilitation, or liquidation
of Grantor by a court of competent jurisdiction or in the event of appointment
of a receiver, shall not constitute a waiver of Beneficiary's right to make a
withdrawal at a later time.
Section 1.16. Withdrawals from the Trust Account may be made by
Beneficiary at any time and from time to time, with notice to Grantor, subject
to written notice from Beneficiary to Trustee stating the amount of the
withdrawal and that it is in accordance with the provisions of Sections 1.15 and
1.16 of this Agreement, and providing instructions as to where the withdrawn
assets should be delivered. No other statement or document need be presented by
Beneficiary in order to withdraw Assets, except that Beneficiary shall be
required by Trustee to acknowledge receipt of withdrawn Assets. Trustee shall
not be required to notify Grantor of its receipt of such instructions. Upon
receipt of Beneficiary's written instructions, unless objected to in writing in
good faith by Grantor by notice received by Trustee on the grounds that such
withdrawal is not permitted by this Agreement, Trustee shall immediately take
any and all necessary steps to transfer absolutely and unequivocally to
Beneficiary all right, title, and interest in the Assets
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being withdrawn and to deliver the physical custody thereof to Beneficiary.
Commencing twenty-four months after the effective date of this Agreement,
Grantor may, with the written consent of Beneficiary, direct Trustee by written
notice given pursuant to Section 1.15(a)(2) hereof, to make payment to Grantor
of any amounts held in the Trust Account to the extent that the fair market
value of Assets in the Trust Account exceeds the Minimum Funding Requirement
determined as of such time. Upon receipt of Grantor's written instruction,
accompanied by Beneficiary's written consent, Trustee shall immediately take any
and all necessary steps to transfer absolutely and unequivocally to Grantor all
right, title, and interest in the assets being withdrawn and to deliver physical
custody thereof to Grantor. Trustee shall be protected in relying upon any
written demand of Beneficiary or Grantor for such withdrawal and on any
statement made therein. To the extent that sufficient Assets in the form of cash
are not available for a particular withdrawal, Trustee shall act upon the
instructions of the Investment Manager to sell specific Assets identified by the
Investment Manager. Except as provided in Sections 1.12(b), 1.14, 1.15 and 1.16,
no person may direct a withdrawal or transfer of Assets from the Trust Account,
except that the Investment Manager may furnish instructions to Trustee regarding
investment of the Assets so long as all such investments constitute Permitted
Investments.
Section 1.17. (a) On the instructions and for the account and risk of
Grantor, Trustee shall process purchases and sales of Assets for the Trust
Account. The proceeds therefrom shall be invested in Permitted Investments in
the Trust Account. Grantor's instructions shall contain the terms and conditions
of the purchase or sale instructions that are acceptable to Grantor.
(b) Trustee shall provide Grantor and Beneficiary monthly with
schedules of Assets in the Trust Account and transactions statements showing all
transactions in the Trust Account. Grantor and Beneficiary shall examine such
schedules and statements promptly. Unless Grantor or Beneficiary files with
Trustee a written exception or claim of noncompliance with Grantor's
instructions within one year of the closing date of the period covered by such
schedules or statements, Grantor and Beneficiary shall be conclusively deemed to
have waived any such exception or claim.
(c) Grantor and Beneficiary agree that Trustee may employ one or more
nationally recognized pricing services to determine the market value of
securities and use other services, publications, and procedures to establish the
value of Assets which may be held in the Trust Account. Grantor and Beneficiary
agree that Trustee shall not be liable in respect of, and to hold Trustee
harmless for, any risk or loss arising from the value ascribed in good faith to
Assets held in this Trust Account.
ARTICLE II.
PROVISIONS RELATING TO THE TRUSTEE
Section 2.01. (a) Trustee shall be a qualified United States financial
institution, as that term is defined in 215 ILCS 5/173.1(3)(B).
(b) Trustee shall not be the parent, subsidiary, or affiliate of either
Grantor or Beneficiary.
Section 2.02. Trustee shall be entitled to receive as compensation for
its services hereunder (which compensation shall not be limited by any provision
of law in regard to the
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compensation of a trustee of an express trust), a fee, computed and payable
monthly, at such rate as may be agreed from time to time in writing between
Grantor and Trustee. Grantor shall be solely responsible for the payment of the
fee of Trustee and all reasonable expenses of Trustee, including reasonable fees
of counsel. The Trust Account shall not be utilized for payment of fees and
expenses of Trustee except as provided in Sections 1.15(a)(4) and 2.10 of this
Agreement.
Section 2.03. (a) Trustee shall be liable for the safekeeping and
administration of the Trust Account in accordance with provisions of this
Agreement.
(b) Trustee shall not be liable hereunder, except for its own
negligence, willful misconduct, or lack of good faith and shall exercise the
standard of care that a professional custodian engaged in the banking or trust
company business and having professional expertise in financial and securities
processing transactions and custody would observe in such affairs. In no event
shall Trustee be liable (i) for acting in accordance with or relying upon any
instruction, notice, demand, certificate or document from an Authorized Officer
(as defined below) of the party entitled hereunder to provide such instruction,
notice, demand, certificate or document, (ii) for any consequential, punitive or
special damages, or (iii) for an amount in excess of the value of the assets in
the Trust Account at the time of such loss or damage. Trustee shall not incur
any liability for not performing any act or fulfilling any duty, obligation or
responsibility hereunder by reason of any occurrence beyond the control of
Trustee (including but not limited to any act or provision of any present or
future law or regulation or governmental authority, any act of God, war or
terrorism, or the unavailability of the Federal Reserve Bank wire or other wire
or communication facility). Nothing contained in any contract between Trustee
and any entity authorized to hold Assets, as defined herein, shall enlarge,
diminish or otherwise alter the liability of Trustee to Grantor or Beneficiary.
The provisions of this paragraph shall not affect the burden of proof under
applicable law with respect to the assertion of liability in any claim, action
or dispute alleging any breach of or failure to observe such standard of care.
(c) Trustee shall not be liable to the Trust or Grantor or Beneficiary
for, and Grantor shall indemnify Trustee and hold Trustee harmless against and
from any and all claims, loss, liabilities, damages, taxes, charges, costs and
expenses of any kind or nature whatsoever (including reasonable attorney's fees
and expenses) Trustee may incur, (i) arising out of or relating to its
appointment or its performance as Trustee hereunder (including but not limited
to costs and expenses incurred by Trustee in connection with its successful
defense, in whole or in part, of any claim of negligence or willful misconduct
on its part), excepting matters resulting from the negligence or willful
misconduct of Trustee and (ii) as a result of any act or omission of Grantor,
including any breach by Grantor of this Agreement. Beneficiary shall indemnify
Trustee and hold Trustee harmless against and from any and all claims, loss,
liabilities, damages, taxes, charges, costs and expenses of any kind or nature
whatsoever (including reasonable attorney's fees and expenses) Trustee may incur
as a result of any act or omission of Beneficiary, including any breach by
Beneficiary of this Agreement.
Section 2.04. (a) Trustee is authorized to accept and rely upon all
written instructions given by one or more officers, employees, or agents of
Grantor, Beneficiary, or Investment Manager authorized by or in accordance with
the incumbency certificate delivered to Trustee concurrently with the execution
of the Prior Agreement (each such officer, employee, or agent or combination of
officers, employees and agents is hereafter referred to as an "Authorized
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Officer"), including without limitation, instructions to sell, assign, transfer
or deliver, or purchase for the Trust Account in connection with a securities
transaction. Trustee may also rely on any instructions bearing or purporting to
bear the facsimile signature of any of the individuals designated by an
Authorized Officer, regardless of or by whom or by what means the actual or
purported facsimile signature or signatures thereon may have been affixed
thereto if such facsimile signature or signatures resemble the specimens from
time to time furnished to Trustee by any such Authorized Officer. In addition,
Trustee may rely on instruction received by telephone, telex, TWX, facsimile
transmission, e-mail, bank wire or other teleprocess acceptable to it that
Trustee believes in good faith, absent its negligence, willful misconduct, or
lack of good faith, to have been given by an Authorized Officer or that are
transmitted with proper testing or authentication pursuant to terms and
conditions which Trustee may specify. Trustee may also rely on instructions
transmitted electronically through any similar electronic instruction system
acceptable to Trustee. Trustee may request from time to time that each of
Grantor and Beneficiary deliver an incumbency certificate setting forth the
names and titles of the Authorized Officers, which certificate shall be signed
by any person authorized to sign an officers' certificate on behalf of each such
party, including any person specified as so authorized in any such certificate
previously delivered and not superseded.
(b) Trustee shall incur no liability to Grantor or Beneficiary or
otherwise as a result of any act or omission by Trustee in accordance with the
instructions on which Trustee is authorized to rely pursuant to the provisions
of this Section 2.04. Any instructions delivered to Trustee by telephone shall
promptly thereafter be confirmed in writing by an Authorized Officer, but
Trustee shall incur no liability for Grantor's or Beneficiary's failure to send
such confirmation in writing, or the failure of any such written confirmation to
conform to the telephone instructions that Trustee received, in the absence of
negligence, willful misconduct, or lack of good faith on the part of Trustee.
Unless otherwise expressly provided, all authorizations and instructions shall
continue in full force and effect until cancelled or superseded by subsequent
instruction received by Trustee.
(c) Trustee may record electronically, but shall not be so obligated,
any instructions given by telephone and any other telephone discussions with
respect to the Trust Account. In the event that Grantor and Beneficiary use any
electronic communications or information system, Grantor and Beneficiary agree
that Trustee is not responsible for the consequence of the failure to perform
for any reason of any communications carrier, utility, or communications network
or the failure to perform for any reason of communications or computer
equipment.
(d) In the event that the electronic communications or information
system is inoperable, Grantor and Beneficiary shall notify Trustee immediately,
and Trustee shall accept the communication of transaction instructions by
telephone, facsimile transmission, or equipment compatible to Trustee's
facsimile receiving equipment or by letter, at no additional charge to Grantor.
Section 2.05. Trustee shall be under no obligation to determine whether
or not any instructions provided by Grantor and Beneficiary are contrary to any
provision of law. It is understood and agreed that Trustee's duties are only as
set forth in this Agreement and that Trustee shall have no duty to take any
other action unless specifically agreed to by Trustee in writing. Without
limiting the generality of the foregoing, Trustee shall not have any duty: (i)
to appear in or defend any suit with respect thereto; (ii) to advise, manage,
supervise, or make
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recommendations with respect to the purchase, retention or sale of Assets; (iii)
with respect to any Assets in the Trust Account as to which a default in the
payment of principal or interest has occurred, to give notice of default, make
demand for payment or take any other action; (iv) to provide notification of the
solvency or financial condition or legal ability; (v) to be responsible for the
consequences of insolvency or the legal inability of any broker, dealer, bank or
other agent employed by Grantor or Trustee with respect to Grantor's Assets
except to the extent that Trustee was negligent in the selection of any such
person or entity; or (vi) expend or risk any of its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder.
Section 2.06. Trustee shall keep full and complete records of the
administration of the Trust Account. Grantor, the Director of Insurance of the
State of Illinois (the "Commissioner"), and Beneficiary may upon reasonable
prior notice given examine such records at any time during business hours by any
person or persons duly authorized in writing by Grantor, the Commissioner, or
Beneficiary, as applicable.
Section 2.07. (a) Trustee hereby accepts the trust herein created and
declared upon the terms herein expressed.
(b) Trustee may resign, by written notification, effective not less
than ninety (90) days after receipt hereof by Grantor and Beneficiary, and
Grantor may by notice remove Trustee at any time upon ninety (90) days written
notice, without assigning any cause therefor, provided that no such resignation
or removal shall be effective until a successor trustee has been appointed by
Grantor and approved by Beneficiary in its sole discretion and such successor
trustee has accepted such appointment and all Assets in the Trust have been duly
transferred to such successor trustee. Within sixty (60) calendar days after
giving the foregoing notice of removal to Trustee or receiving the foregoing
notice of resignation from Trustee, Grantor and Beneficiary shall jointly agree
on and appoint a successor Trustee. If a successor Trustee has not accepted such
appointment by the end of such 60-day period, Trustee may apply to a court of
competent jurisdiction for the appointment of a successor Trustee or for other
appropriate relief. The costs and expenses (including reasonable attorneys' fees
and expenses) incurred by Trustee in connection with such proceeding shall be
paid in accordance with Section 2.02 hereof. Upon delivery of the Assets in the
Trust Account to the successor Trustee, Trustee shall have no further duties,
responsibilities or obligations hereunder, except with respect for any breach of
this Agreement by Trustee occurring prior thereto. In case of the appointment of
a successor trustee, all of the powers, rights, and duties of Trustee named
herein shall survive and continue in the successor, and every successor Trustee
shall succeed to take and have all the estate, powers, rights and duties which
belonged to or were held by its predecessor. In the case of the resignation or
removal of a Trustee, Trustee shall have the right to a final accounting with
respect to the Trust Account.
Section 2.08. If at any time Trustee is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects the Trust Account (including but
not limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of assets), Trustee is authorized
to comply therewith in any manner as it or its legal counsel of its own choosing
deems appropriate; and if Trustee complies with any such judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process, Trustee shall not be
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liable to any of the parties hereto or to any other person or entity even though
such order, judgment, decree, writ or process may be subsequently modified or
vacated or otherwise determined to have been without legal force or effect.
Section 2.09. In the event of any ambiguity or uncertainty hereunder or
in any notice, instruction or other communication received by Trustee hereunder,
Trustee may, in its sole discretion, refrain from taking any action other than
retain possession of the assets deposited in the Trust Account, unless Trustee
receives written instructions, signed by the party delivering such notice,
instruction or other communication, which eliminates such ambiguity or
uncertainty.
Section 2.10. Grantor hereby grants Trustee a lien, right of set-off
and security interest for the payment of any claim of Trustee for compensation,
reimbursement or indemnity hereunder with respect to that amount of income in
the Trust from time to time, if any, that is equal to the excess, if any, of the
fair market value of Assets in the Trust Account over the Minimum Funding
Requirement determined as of such time. Such security interest of Trustee shall
at all times be valid, perfected and enforceable by Trustee against, and with
priority over, Grantor, Beneficiary and all third parties in accordance with the
terms of this Agreement. If any fees, expenses or costs incurred by, or any
obligations owed to, Trustee hereunder are not promptly paid when due, Trustee
may reimburse itself in accordance with Section 1.15(a)(4). Grantor and
Beneficiary hereby acknowledge and agree that the provisions of Sections 2.02,
2.03(c) and this Section 2.10 of this Agreement, providing for the
indemnification, compensation and reimbursement of Trustee, shall survive the
resignation or discharge of Trustee or the termination of this Trust Agreement.
ARTICLE III.
SECURITY INTEREST AND PERFECTION
Section 3.01. Grantor and Beneficiary intend to create a valid and
binding transfer of the beneficial ownership of the Assets from Grantor to the
Trust Account for the sole use and benefit of Beneficiary and to create a
security interest in the Assets in favor of Beneficiary.
Section 3.02. To secure payment and performance of all the liabilities
and obligations (whether contingent or matured) of Grantor to Beneficiary under
the Reinsurance Agreement, including without limitation the Obligations (the
"Secured Obligations"), Grantor hereby pledges to Beneficiary and grants to
Beneficiary a first priority lien and security interest in all of Grantor's
right, title, and interest in and to (i) the Assets; (ii) subject to Section
1.14 of this Agreement, all principal, interest, dividends, and other
distributions paid in respect of the Assets; (iii) all proceeds of the
foregoing; (iv) all securities entitlements (as that term is defined in Section
8-102 of the New York Uniform Commercial Code, as the same may be amended from
time to time (the "UCC")); and (v) the Trust Account (collectively, the
"Collateral"); provided, however, that such security interest of Beneficiary
shall not extend to, and the Collateral shall not include, that portion of the
Trust Account which is actually released or distributed to Grantor from time to
time pursuant to the terms of this Agreement.
Section 3.03. Beneficiary hereby appoints Trustee as the securities
intermediary and Trustee accepts such appointment. Trustee acknowledges that in
the ordinary course of business it maintains securities accounts for others and
is acting in that capacity for the benefit of Beneficiary under this Agreement.
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Section 3.04. Each of Grantor and Beneficiary hereby agrees and
acknowledges that: (i) the Trust Account (account number 221477) is and will
remain a "securities account" as that term is defined in Section 8-501(a) of the
UCC; (ii) Trustee is a "securities intermediary" as that term is defined in
Section 8-102(a)(14) of the UCC and shall, subject to the terms of this
Agreement, treat Beneficiary as entitled to exercise the rights provided in this
Agreement and in the UCC with respect to any financial asset credited to the
Trust Account; (iii) the "securities intermediary's jurisdiction" as that term
is defined in Section 8-110(e) of the UCC with respect to the Trust Account is
the State of New York; (iv) the monies, funds, and each other item of property
credited to or carried in the Trust Account shall be treated as "financial
assets" as that term is defined in Section 8-102(a)(9) of the UCC; (v)
Beneficiary shall be the "entitlement holder" as that term is defined in Section
8-102(a)(8) of the UCC with respect to all such financial assets, and Trustee
agrees that it will comply with "entitlement orders" relating to the Trust
Account therefrom; and (vi) the Trust Account shall be a securities account of
Beneficiary, under its exclusive dominion and control (including without
limitation, "control" as defined in Section 8-106 of the UCC), and shall be
segregated from all other funds or other property otherwise held by Grantor.
Section 3.05. All Collateral must be held in the Trust Account. Grantor
shall, in connection with the delivery of any cash or certificated securities
that constitute Collateral to the Trust Account, deliver to Trustee appropriate
instruments of transfer endorsed in blank or to Trustee, as appropriate. Grantor
shall, in connection with the delivery of any uncertificated securities that
constitute Collateral to the Trust Account, deliver to Trustee and Beneficiary a
written statement (in a form approved by Beneficiary) appropriately completed,
and signed on behalf of Grantor identifying the Collateral to be transferred to
the Trust Account. Each such statement delivered to Beneficiary and Trustee
pursuant to this Agreement, and the description of Collateral therein, is hereby
incorporated by reference into this Agreement as if fully set forth herein. In
connection with the delivery of Collateral to the Trust Account, Trustee shall
make appropriate entries on its books increasing the Trust Account by the
Collateral included on the statement from Grantor, and Trustee or Grantor, as
applicable, shall make or cause to be made entries on the appropriate books
reducing the accounts of Grantor by the collateral included on the statement and
shall deliver confirmations of such book entries to Beneficiary.
Section 3.06. Grantor covenants that it (i) shall faithfully preserve
and protect Beneficiary's security interest in the Collateral; (ii) assumes full
responsibility for taking, and shall take, any and all necessary steps to
preserve Beneficiary's rights with respect to the Collateral against third
parties; and (iii) shall do all such acts and things and execute and deliver all
documents and instruments, including without limitation further pledges,
assignments, registrations, confirmations of bulk entries, financing statements,
and continuation statements that Beneficiary in its reasonable discretion may
deem necessary or advisable from time to time in order to preserve protect or
perfect its security interest. Grantor hereby (i) authorizes Beneficiary to sign
and file financing statements and continuation statements without the signature
of Grantor with respect to the Collateral and (ii) appoints Beneficiary as
Grantor's attorney-in-fact to sign and file financing and continuation
statements in Grantor's name with respect to the Collateral.
Section 3.07. Grantor represents and warrants to Beneficiary and
Trustee that, as long as any Secured Obligations remain outstanding, Grantor
owns and has good and marketable title to the Collateral, free and clear of any
liens, equities, claims, encumbrances, and transfer
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restrictions, other than the interests of Trustee and Beneficiary created
hereunder, and upon the execution and delivery of this Agreement, Beneficiary
will have a valid and perfected first priority security interest in the
Collateral. Trustee makes no representation or warranty as to the security
interest of Beneficiary or the continuation thereof under the terms of this
Agreement.
Section 3.08. Beneficiary shall have all of the rights and remedies for
a default under any Secured Obligation provided by the UCC, as well as any other
applicable law, and as set forth in this Agreement.
Section 3.09. Trustee shall execute all such further documents or
instruments consistent with the other provisions of this Agreement that are
reasonably requested by Beneficiary from time to time in connection with the
security interests granted under this Agreement (including without limitation in
connection with the perfection thereof). Trustee shall not comply with any
entitlement orders (as that term is defined in Section 8-102(a)(8) of the UCC)
from Grantor or any party or person other than Beneficiary, unless directed to
do so in writing by Beneficiary. Trustee does not know of any claim to or
interest in the Trust Account, except for the claim and interest of Grantor and
Beneficiary, and shall promptly notify Beneficiary if it ever receives notice of
any such claim or interest.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF TRUSTEE, GRANTOR, AND BENEFICIARY
Section 4.01. Trustee represents, and warrants to Grantor and
Beneficiary that:
(a) This Agreement has been duly and validly executed and delivered by
Trustee and constitutes the legal, valid, and binding obligation of Trustee.
(b) The execution, delivery, and performance by Trustee of this
Agreement and the acceptance of Assets by Trustee pursuant hereto, do not and
will not (i) violate any provision of any law, rule, regulation, order, writ,
judgment, decree, determination, or award presently in effect having
applicability to Trustee; or (ii) result in a breach of or constitute a default
under any indenture or loan or credit agreement, or any other agreement or
instrument, to which Trustee is a party or by which Trustee or any of its
properties may be bound or affected, the effect of which will materially affect
Trustee's ability to perform hereunder.
(c) Trustee has obtained any and all authorizations, consents,
approvals, licenses, qualifications, or formal exemptions from, and any filings,
declarations, or registrations with, any court, governmental agency or
regulatory authority, or any securities exchange or any other person that are
required in connection with (i) the execution, delivery, or performance by
Trustee of this Agreement or (ii) the acceptance of the Assets by Trustee in the
manner and for the purpose contemplated by this Agreement.
Section 4.02. Grantor represents and warrants to Trustee and
Beneficiary that:
(a) This Agreement has been duly and validly executed and delivered by
Grantor and constitutes the legal, valid, and binding obligation of Grantor.
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(b) The execution, delivery, and performance by Grantor of this
Agreement and the transfer and conveyance of Assets by Grantor pursuant hereto,
do not and will not (i) violate any provision of any law, rule, regulation,
order, writ, judgment, decree, determination, or award presently in effect
having applicability to Grantor; or (ii) result in a breach of or constitute a
default under any indenture or loan or credit agreement, or any other agreement
or instrument, to which Grantor is a party or by which Grantor or any of its
properties may be bound or affected.
(c) Grantor has obtained any and all authorizations, consents,
approvals, licenses, qualifications, or formal exemptions from, and any filings,
declarations, or registrations with, any court, governmental agency or
regulatory authority (including any department(s) of insurance having power or
jurisdiction over Grantor), or any securities exchange or any other person that
are required in connection with (i) the execution, delivery, or performance by
Grantor of this Agreement or (ii) the transfer and conveyance of the Assets by
Grantor in the manner and for the purpose contemplated by this Agreement.
(d) Grantor meets the following solvency requirements as of the date
the Trust Account is created: (i) the fair market value of the assets of Grantor
is, on such date, greater than the total amount of the debts and liabilities of
Grantor as of such date, (ii) Grantor is able to pay all of its liabilities as
and when such liabilities mature, and (iii) Grantor has not incurred nor does it
plan to incur debts beyond its ability to pay any such debts as they mature, it
being understood that, in the case of each of clauses (i) - (iii) above, the
debts and liabilities of Grantor shall be determined in accordance with the
statutory accounting principles prescribed or permitted by the Illinois
Department of Insurance in effect from time to time.
Section 4.03. Beneficiary represents and warrants to Trustee and
Grantor that:
(a) This Agreement has been duly and validly executed and delivered by
Beneficiary and constitutes the legal, valid, and binding obligation of
Beneficiary.
(b) The execution, delivery, and performance by Beneficiary of this
Agreement, do not and will not (i) violate any provision of any law, rule,
regulation, order, writ, judgment, decree, determination, or award presently in
effect having applicability to Beneficiary; or (ii) result in a breach of or
constitute a default under any indenture or loan or credit agreement, or any
other agreement or instrument, to which Beneficiary is a party or by which
Beneficiary or any of its properties may be bound or affected.
(c) Beneficiary has obtained any and all authorizations, consents,
approvals, licenses, qualifications, or formal exemptions from, and any filings,
declarations, or registrations with, any court, governmental agency or
regulatory authority (including any department(s) of insurance having power or
jurisdiction over Beneficiary), or any securities exchange or any other person
that are required in connection with the execution, delivery, or performance by
Beneficiary of this Agreement.
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ARTICLE V.
MISCELLANEOUS PROVISIONS
Section 5.01. This Agreement shall be effective for as long as Grantor
has outstanding Obligations due under the Reinsurance Agreement, unless
alternative security for the Obligations meeting the requirements of Illinois
law and otherwise acceptable to Beneficiary in its sole discretion is
substituted for the Trust Account Grantor and Beneficiary agree to notify
Trustee when such circumstances exist. Written notice of termination shall be
delivered by Trustee to Beneficiary at least thirty (30) but not more than
forty-five (45) days prior to termination. Upon the termination of this Trust
Agreement, Trustee shall, with Beneficiary's written acknowledgement of
termination (not to be unreasonably withheld), transfer, pay over and deliver to
Grantor all of the Assets of the Trust Account less all its proper fees and
expenses then owing in exchange for a written receipt from Grantor.
Section 5.02. The provisions of and validity and construction of this
Agreement and any amendments thereto 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. Each party hereby submits to the personal jurisdiction of, and each
agrees that all proceedings relating hereto shall be brought in, courts located
within the City and State of New York. Each party hereby waives the right to
trial by jury in any such proceedings. To the extent that in any jurisdiction
any party may be entitled to claim, for itself or its assets, immunity from
suit, execution, attachment (whether before or after judgment) or other legal
process, each hereby irrevocably agrees not to claim, and hereby waives, such
immunity. Grantor and Beneficiary each waives personal service of process and
consents to service of process by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices hereunder,
and such service shall be deemed completed ten (10) calendar days after the same
is so mailed.
Section 5.03. In the event any provision of this Agreement is held
invalid or unenforceable for any reason, the invalidity or unenforceability
shall not affect the remaining parts of this Agreement.
Section 5.04. All notices, requests, directions, instructions,
consents, and other communications required or permitted hereunder shall be in
writing and shall be delivered in person or delivered by facsimile transmission
(with a copy also sent by another means herein provided for) or a nationally
recognized overnight carrier service or mailed by first class registered or
certified mail, postage prepaid, addressed as follows:
If to Grantor, to:
Lumbermens Mutual Casualty Company
0 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
With a copy to:
Sidley Xxxxxx Xxxxx & Xxxx LLP
00 Xxxxx Xxxxxxxx Xxxxxx
Bank Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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If to Beneficiary, to:
SeaBright Insurance Company
0000 0xx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: President
Facsimile: 000-000-0000
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx X. Xxxx, P.C.
Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
If to Trustee, to:
The Bank of New York
Corporate Trust Administration
000 Xxxxxxxx Xxxxxx, Xxxxx 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Insurance Trust and Escrow Unit
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Investment Manager, to the address set forth in Exhibit A
All notices, requests, instructions, directions or other communications
delivered hereunder shall be effective only upon actual receipt. Whenever under
the terms hereof the time for giving a notice or performing an act falls upon a
Saturday, Sunday, or banking holiday, such time shall be extended to the next
day on which Trustee is open for business.
Section 5.05. 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 5.06. This Agreement shall be binding upon the successors and
assigns of the parties hereto, provided that in no event shall assignment
relieve the assigning party from its obligations hereunder.
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Section 5.07. Notwithstanding the foregoing, any corporation or other
company into which Trustee may be merged or converted or with which it may be
consolidated, or any corporation or other company resulting from any merger,
conversion or consolidation to which Trustee shall be a party, or any
corporation or other company succeeding to all or substantially all of the
corporate trust business of Trustee, shall be the successor of Trustee and
thereafter solely liable hereunder (provided that such corporation or other
company shall be otherwise qualified and eligible hereunder) without the
execution or filing of any paper or any consent or further action on the part of
any of the parties hereto.
Section 5.08. Trustee does not have any interest in the assets
deposited in the Trust Account hereunder but is serving as trustee only and
having only possession thereof. Grantor shall pay or reimburse Trustee upon
request for any transfer taxes or other taxes relating to the assets so
deposited incurred in connection herewith and shall indemnify and hold harmless
Trustee any amounts that it is obligated to pay in the way of such taxes. Any
payments of income from this Trust Account shall be subject to withholding
regulations then in force with respect to United States taxes. It is understood
that Trustee shall be responsible for income reporting only with respect to
income earned on investment of funds which are a part of the deposited assets
and is not responsible for any other reporting.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first written above.
(Grantor) Lumbermens Mutual Casualty Company
Tax I.D. Number: 00-0000000
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and CFO
(Beneficiary) SeaBright Insurance Company
/s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------
By: Xxxx X. Xxxxxxxxxxx
Title: President
(Trustee) The Bank of New York, as Trustee
/s/ Aldrin X.X Xxxxx
-------------------------------------
By: Aldrin X.X Xxxxx
Title: Assistant Treasurer
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Exhibit A
Initial Investment Manager
Deutsche Asset Management
1325 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
