EXHIBIT 10.31
AMENDMENT NO. 1 TO
ACCOUNT CONTROL AGREEMENT BETWEEN CITIBANK, N.A. ("CITIBANK"), ALLIED
WORLD ASSURANCE COMPANY LTD ("ALLIED WORLD") AND MELLON BANK, N.A.
("MELLON") DATED 19 SEPTEMBER 2002 (THE "CONTROL AGREEMENT")
Dated upon the date that the last signature is affixed and dated hereto.
In consideration of the agreements made in this Amendment Agreement and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be bound, Citibank, Allied World and Mellon
(collectively, the "Parties") hereby agree as follows:
1. The second and fourth bullet points and the wording following them in
Section 3 shall be deleted and the remaining two bullet points shall be
re-designated as Subsections 3.01 and 3.02 respectively.
2. A new Subsection 3.03 shall be inserted as follows:
"Pledgor shall not direct Bank to release any of the financial assets in
the Account or to close the Account and Bank agrees that it will not
release any of the financial assets in the Account or close the Account
without Secured Party's consent. For this purpose the term "release" shall
be broadly construed to include release for any purpose, including
(without limitation) release for settlement of a sale, release for the
purposes of substituting new financial assets, release "free" without
consideration and any other manner of leaving the Account. Secured Party
will consent to the release of the financial assets provided that with
respect to such financial assets, the following procedure is adhered to:
(a) Pledgor will determine (the "Determination") that the financial
assets remaining in the Account will be equal to or exceed the
aggregate value determined by Secured Party from time to time (the
"Required Account Value") and to determine this shall diligently and
in good faith:
(i) determine that the financial asset is eligible as collateral
as specified in Exhibit A hereto; and
(ii) use the xxxx-to-market value provided by pricing services used
by Bank in connection with the valuation of financial assets
under similar account control arrangements or for Bank's trust
accounts, in each instance after applying the discount
specified in Exhibit A hereto; provided that in determining if
the remaining financial assets are sufficient Pledgor shall
use the xxxx-to-market values of the financial assets reported
by such services not more than the Business Day (as
hereinafter defined) prior to the withdrawal or distribution
of any financial asset. Any financial asset that cannot be
valued as provided herein and any financial asset subject to
Bank's lien specified in Section 4 shall have no value in
determining if the financial assets to remain in the Account
are sufficient for the purposes of meeting the Required
Account Value.
(b) If following the Determination, Pledgor has come to the reasonable
conclusion that by requesting a financial asset to be released, the
financial assets remaining in the account will be equal to or in
excess of the Required Account Value (a "Positive Determination"),
Pledgor will fax:
(i) the instruction relating to the financial assets that it
wishes to be released (the "Instruction"); and
(ii) the value of the financial assets that are currently in the
Account (in the form of a portfolio valuation statement
compiled by Bank and in a form reasonably acceptable to
Secured Party) and the value of the financial asset that it
wishes to be released (both as calculated in accordance with
the methodology in Subsection 3.03(a)),
to Secured Party for the attention of its Collateral Monitoring Unit
on x00 000 000 0000 (or such other number as Secured Party may
notify Pledgor of from time to time) so that it is received by
Secured Party (unless Secured Party agrees otherwise) at least three
Business Days (excluding the day upon which it is received and the
day upon which such instruction is intended to take effect) before
the day upon which such instruction is intended to take effect;
(c) Secured Party will then promptly consider the Positive Determination
and if it agrees with it, will approve the Instruction (by the
affixing of the signatures of two of the persons who appear in
Exhibit B hereto (each being an "Authorised Signatory") as amended
and advised in writing to Pledgor by Secured Party from time to
time) and will return it by fax to Pledgor on 000 000 000 0000 (or
such other number as Pledgor may notify Secured Party of from time
to time) within 48 hours of receipt. Once signed in this manner by
Secured Party, the Instruction becomes an "Endorsed Instruction".
(d) Pledgor will then fax the Endorsed Instruction to Bank for
processing on 001 412 234 8725 (or such other number as Bank may
notify Pledgor of from time to time).
(e) Secured Party and Bank shall have no responsibility for any loss or
liability of any nature (direct or indirect) suffered by the Pledgor
as a result of any failure to transmit funds or to sell, purchase,
or otherwise dispose of commodities or securities (or any delay in
transmitting funds or selling, purchasing, or otherwise disposing of
commodities or securities) or because the approval given by Secured
Party in this Section 3 is either delivered late or not forthcoming,
unless Secured Party or Bank (as the case may be) was negligent or
acted in bad faith.
(f) In this Section a "Business Day" shall be construed as a reference
to a day (other than a Saturday or Sunday) on which banks are
generally open for business in the Republic of Ireland.
(g) Should there be any difficulties with fax transmissions between any
of the Parties, the relevant Parties will attempt to effect delivery
using another method as agreed between them."
3. A new Subsection 3.04 shall be inserted as follows:
"Pledgor and Bank shall be entitled to rely:
(a) (subject to Subsection 3.04(b)) upon an Endorsed Instruction which it
believes in good faith to have been signed by any two of the
Authorised Signatories; and
(b) until notified by Secured Party to the contrary, upon the continued
authority of any Authorised Signatory to endorse an Instruction."
4. The Schedule to this Amendment Agreement shall be inserted after Exhibit A
of the Control Agreement as Exhibit B to the Control Agreement.
5. Except as expressly amended hereby, the Control Agreement shall continue
in full force and effect.
6. Sections 7, 8, 9, 10, 11, 12, 13, 14 and 16 of the Control Agreement shall
apply to this Amendment Agreement mutatis mutandis.
7. This Amendment Agreement may be executed in any number of counterparts and
different parties hereto in separate counterparts (whether original or
facsimile counterparts), each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be duly executed and delivered by its officer thereunto duly authorised as of
the date upon which the last signature is affixed and dated.
CITIBANK, N.A.
By: /s/ R. Arch
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Name: R. ARCH
Title: V.P.
Date: 31 March 04
ALLIED WORLD ASSURANCE COMPANY LTD
By: /s/ Xxxx X. Xxxxxxx
---------------------
Name: Xxxx X. Xxxxxxx
Title: CHIEF ACCOUNTING OFFICER
Date: 3/18/04
MELLON BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: XXXXXX X. XXXXXXX
Title: VICE PRESIDENT
Date:
MELLON BANK, N.A.
