EXHIBIT 10.67
ALLIANCE CAPITAL MANAGEMENT L.P.
Discretionary Investment Advisory Agreement
With
Platinum Underwriters Bermuda, Ltd.
Platinum Re (UK) Limited
Dated November 26, 2002
(Effective Date)
Alliance Capital Management L.P. (the "Adviser") and the
undersigned hereby agree as of the above date that the Adviser shall act as
discretionary investment manager with respect to certain assets of Platinum
Underwriters Bermuda, Ltd., (the "Client") described below (the "Investment
Account") on the following terms and conditions:
1. The Investment Account
The Investment Account established for the Client refers
collectively to the Collateral Accounts defined in and subject to a certain
Control Agreement, by and among the Client, Platinum Re (UK) Limited ("Platinum
UK") and State Street Bank and Trust Company, dated as of November 26, 2002 (the
"Control Agreement") and established as a condition of the Quota Share
Retrocession Agreement, by and between the Client and Platinum UK, dated as of
November 26, 2002, (the "Quota Share Retrocession Agreement"). The investment
account shall initially consist of cash and USD, Sterling, Euro, and
Yen-denominated government and investment grade corporate bonds within the
classes permitted by the Financial Services Authority of the United Kingdom as
described in Schedule A ("Eligible Credit Support") placed in the Investment
Account by the Client or which shall become part of the Investment Account as a
result of transactions.
All cash, securities and other assets in the Investment
Account shall be held by such other party as the Client, with the prior written
consent of Platinum UK shall designate as trustee or custodian for such account
(each, a "Custodian"). As of the date of this Agreement, the Client and Platinum
UK have designated State Street Bank and Trust Company as Custodian. The Adviser
shall not be responsible for any custodial arrangements involving the assets of
the Investment Account or for the payment of any custodial charges and fees, nor
shall the Adviser have possession or custody of any such assets. All payments,
distributions and other transactions in cash, securities or other assets in
respect of the Investment Account shall be made directly to or from the
Custodian for such Investment Account, and the Adviser shall have no
responsibility or liability with respect to transmittal or safekeeping of such
cash, securities or other assets of an Investment Account, or the acts or
omissions of any Custodian or others with respect thereto. The Client may make
additions to or withdrawals from the Investment Account established for it,
provided the Adviser receives at least three (3) business days' prior written
notice of withdrawals. Should the Client fail to provide the Adviser with timely
written notice of any additions to or withdrawals from its Investment Account,
the Adviser shall not be liable for any resulting investment or other loss, if
any, which shall be incurred by or charged to the applicable Investment Account,
as the case may be. The Client agrees to provide or instruct the Custodian for
its Investment Account to provide to the Adviser such information as the Adviser
may reasonably request as being necessary or appropriate to the performance of
the Adviser's responsibilities to the Client under this Agreement.
2. Services of Adviser
By execution of this Agreement, the Adviser accepts its
appointment as investment manager for the Investment Account with full
discretion and agrees to supervise and direct the investments of the Investment
Account in accordance with the written investment objectives, policies and
restrictions of the Client previously furnished to the Adviser as the same may
be amended by the Client from time to time. In the performance of its services,
the Adviser will not be liable for any error in judgment or any acts or
omissions to act except those resulting from the Adviser's negligence, willful
misconduct, malfeasance or material breach of this Agreement. Nothing herein
shall in any way constitute a waiver or limitation of any right of any person
under the Federal securities laws or any state securities laws
The Adviser will make available to the Client a daily report
on the positions of each of the investments in the Investment Account and a
monthly written report of the inventory of investments in the Investment Account
established for the Client. It is agreed that the Adviser, in the maintenance of
its records, does not assume responsibility for the accuracy of information
furnished by any Client or any other person.
3. Funding Policy
The Client shall from time to time inform the Adviser in
writing of the funding policy applicable to it and of its cash disbursement
requirements. The Adviser shall make its investment decisions for an Investment
Account in accordance with such funding policy and requirements.
4. Investment Objectives. Policies and Restrictions
It will be the responsibility of the Client to notify the
Adviser in writing of any modifications to Schedule A. The Client is also
required to notify the Adviser in writing of specific restrictions governing its
Investment Account under the current or future laws of any jurisdiction or by
virtue of the terms of any other contract or instrument purporting to bind the
Client or the Adviser.
The Adviser acknowledges and agrees that it shall not, without
the prior written consent of Platinum UK, accept any changes to Schedule A or
otherwise adopt investment objectives, policies or restrictions that would be in
conflict with Schedule A.
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5. Delivery of Client Documentation
No later than the date of this Agreement, the Client will
provide the Adviser with copies of all documents relevant to the Adviser's
management of the Investment Account established for the Client, (i.e. trust
agreement, pension plan documents, by-laws, etc.), including the Client's
written statement of investment objectives, policies and restrictions referred
to above. The Client further agrees to promptly deliver to the Adviser true and
complete copies of all amendments or supplements to such documents. The Client
will indemnify and hold harmless the Adviser against any and all losses, costs,
claims and liabilities which it may suffer or incur arising out of any failure
by the Client to provide to the Adviser the documents required to be furnished
in accordance with the above provisions.
6. Discretionary Authority
The Adviser, whenever it deems appropriate may (i) buy, sell,
exchange, convert, liquidate or otherwise trade in any stock, bonds and other
securities (including money market instruments) and contracts relating to the
same, and (ii) subject to its duty to seek best execution, place orders for the
execution of such transactions with or through such brokers, dealers or issuers
as the Adviser in its absolute discretion may select.
It is understood that, to the extent permitted by Schedule A,
the Adviser or Alliance Capital Global Derivatives Corporation, an affiliate of
the Adviser, may also effect transactions for the Investment Account of the
Client in options and futures and other commodity contracts. In such event, the
Client will execute any additional documentation which the Adviser deems
necessary to enable it or its affiliate to engage in such transactions on behalf
of its Investment Account. The Client represents and warrants that it is
familiar with the requirements of the Commodity Exchange Act and the National
Futures Association pertaining to commodity pool operators and has determined
that it is in compliance with such requirements, to the extent applicable.
7. Brokerage Transactions
Fixed-income securities transactions for the Investment
Account will generally be effected in dealer markets where the Adviser will act
as agent for the Client in the purchase or sale of fixed-income securities at a
net price that includes a mark-up from the dealer. The Adviser will issue
instructions to such issuers, brokers and dealers for the placement of orders
for the Investment Account and instruct such dealers to forward to the Client
copies of all confirmations promptly after the execution of transactions for the
Client's Investment Account.
8. Aggregation of Transactions
The Client authorizes the Adviser in its discretion to
aggregate purchases and sales of securities for its Investment Account with
purchases and sales of securities of the same issuer for other clients of the
Adviser occurring on the same day. When transactions are so aggregated, the
actual prices applicable to the aggregated transactions will be averaged, and
the
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Investment Account and the accounts of other participating clients of the
Adviser will be deemed to have purchased or sold their proportionate share of
the securities involved at the average price so obtained.
9. Transaction Procedures
All transactions will be settled by payment to, or delivery
by, the applicable Custodian of all cash, securities or other assets due to or
from the Investment Account. The Adviser may issue such instructions to a
Custodian as may be appropriate in connection with the settlement of
transactions initiated by the Adviser. Instructions of the Adviser to a
Custodian shall be transmitted in writing or, at the option of the Adviser,
orally and confirmed in writing as soon as practical thereafter. The Adviser
will take reasonable measures to insure that broker-dealers and issuers selected
by the Adviser perform their obligations with respect to the Investment
Accounts.
10. Fees
The compensation of the Adviser for its services under this
Agreement shall be calculated and paid by the Client in respect of the
Investment Account established for it, in accordance with the Fee Schedule
attached hereto as Exhibit A, as the same may be amended from time to time by
mutual agreement between the Client and the Adviser. It is understood that, in
the event that such fees are to be billed to and paid by the Custodian for an
Investment Account, the Client will provide written authorization to the
Custodian to pay the fees of the Adviser directly from the Investment Account.
The Client shall be responsible solely for the fee due to the Adviser in respect
of the Investment Account established for such Client.
11. Confidential Relationship
All information provided by the Client or a Custodian to the
Adviser shall be held as confidential by the Adviser; provided, however, as is
necessary to carry out the purposes of this Agreement or as may be required by
law, the Adviser shall be permitted to disclose or communicate to a proper party
any information received from the Client or a Custodian or developed by the
Adviser under the terms of this Agreement. All recommendations, advice and other
work product of the Adviser developed under the terms of this Agreement and
disclosed to the Client or a Custodian shall be held as confidential, except as
required by law. Notwithstanding the foregoing, Client hereby authorizes the
Adviser to disclose through whatever means it deems appropriate (CHECK THE
APPROPRIATE BOXES BELOW):
PLATINUM UNDERWRITERS BERMUDA, LTD.
(a) Yes [X] No [ ] that the Client is an investment management client
of the Adviser;
(b) Yes [X] No [ ] the type of assets that the Adviser is managing
for the Client from time to time (e.g., fixed-
income assets); and/or
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(c) Yes [X] No [ ] solely in the limited context of the Adviser's
responses to Request for Proposals ("RFPs"), the
Adviser is also authorized by the Client to
disclose in such RFPs, the value of the assets
managed for the Client by the Adviser from time to
time.
If the Client does not check either "yes" or "no" to any of the requested
disclosure authorizations indicated in (a) through (c) above, the Client shall
be deemed to have no objection to the Adviser disclosing the indicated
information. The Client may revoke these authorizations in respect of itself, at
any time by written notice to the Adviser.
12. Services to Other Clients
It is understood that the Adviser performs investment advisory
services for various clients including investment companies. The Client agrees
that the Adviser may give advice and take action with respect to any of its
other clients which may differ from advice given, or the timing or nature of
action taken, with respect to the Investment Account established for it, so long
as it is the Adviser's policy, to the extent practical, to allocate investment
opportunities to the, Investment Account over a period of time on a fair and
equitable basis relative to other clients.
Nothing in this Agreement shall limit or restrict the Adviser
or any of its directors, officers, affiliates or employees from buying, selling
or trading in any securities or other assets for its or their own account or
accounts, and each of the Client and Platinum UK acknowledges that the Adviser,
its directors, officers, affiliates and employees, and other clients of the
Adviser, may at any time have, acquire, increase, decrease or dispose of
positions in investments which are at the same time being acquired, the or
disposed of for the Investment Account.
The Adviser will not have the obligation to initiate the
purchase or sale, or to recommend for purchase or sale, for the Investment
Account any security or other asset which the Adviser, its directors, officers,
affiliates or employees may purchase, hold or sell for its or their own accounts
or for the accounts of any other clients of the Adviser.
13. Non-Public Information
The Adviser will have no obligation to purchase or sell for
the Investment Account the securities of any issuer on the basis of any material
non-public information as may come into its possession.
14. Representations by the Client and Platinum UK
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The Client represents and warrants that the appointment of the
Adviser as discretionary investment adviser entitled to give entitlement orders
or other instructions and communications to the Custodian is authorized by the
governing documents (including, but not limited to the Quota Share Retrocession
Agreement and all documents related thereto) relating to the Investment Account
and that the terms of this Agreement do not violate any provisions thereof or
any obligation by which it is bound, whether arising by contract, operation of
law or otherwise. The Client and Platinum UK each represents and warrants as to
itself that (i) this Agreement has been duly authorized by appropriate action
and when executed and delivered will be binding upon it in accordance with its
terms; and (ii) it will deliver to the Adviser such evidence of such authority
as the Adviser may reasonably require, whether by way of a certified resolution
or otherwise.
15. Representations by Adviser
The Adviser represents that (i) it is registered as an
investment adviser under the Investment Advisers Act of 1940, as amended (the
"Advisers Act") and (ii) that it has all other regulatory authority and capacity
to enter into this Agreement and perform its duties hereunder.
16. Indemnification
The Adviser agrees to indemnify and hold the Client harmless
from any and all expenses, damages, costs and fees, including reasonable
attorney's fees, which may be incurred by reason of the Adviser's negligence,
willful misconduct, malfeasance, material breach of this Agreement or violation
of applicable law.
17. Valuation
In computing the market value of any security held in the
Investment Account, the Adviser shall value such security through independent,
recognized pricing services utilized by the Adviser for pricing securities held
in its advisory accounts generally. Any other security or asset shall be valued
in a manner determined in good faith by the Adviser to reflect its fair market
value.
18. Receipt of Disclosure Statement
Each of the Client and Platinum UK acknowledges receipt of
Part II of the Adviser's current Form ADV in compliance with Rule 204-3(b) under
the Advisers Act more than forty eight (48) hours prior to the date of execution
of this Agreement.
19. Notices
Unless otherwise specified herein, all notices, instructions
and advice with respect to security transactions or any other matters
contemplated by this Agreement shall be deemed duly given when received by the
Client, Platinum UK and the Adviser, as applicable, at their
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addresses appearing below. In respect of the Investment Account, the Adviser may
rely upon any notice (written or oral) from any person whom the Adviser
reasonably believes to be an authorized representative of the Client.
20. Specimen Signatures
The Adviser will forward from time to time to the Client and
the Custodian for the Client's Investment Account, a list of names and specimen
signatures of persons authorized to act on behalf of the Adviser. Each of the
Client and Platinum UK will forward to the Adviser a list of names and specimen
signatures of persons authorized to act on behalf of the Client and Platinum UK
(as the case may be) and shall cause the Custodian of its Investment Account to
forward a like list and specimen signatures to the Adviser.
21. Invalid Provisions
If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future law, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part of this
Agreement, and the remaining provisions of this Agreement shall remain in full
force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or its severance from this Agreement.
22. Termination; Assignment; Amendment; Suspension
This Agreement may be terminated at any time by the Client in
respect of its Investment Account by giving to the Adviser at least thirty (30)
days' prior written notice of such termination. This Agreement may be terminated
at any time by the Adviser in respect of the Investment Account by giving to the
Client at least thirty (30) days' prior written notice of such termination. Fees
paid in advance of the effectiveness of the termination will be prorated to the
date of termination specified in the notice of termination, and any unearned
portion thereof will be refunded to the Client. No assignment, as that term is
defined in the Advisers Act, shall be made by the Adviser without the written
consent of the Client. No assignment shall be deemed to result from changes in
the directors, officers or employees of the Adviser except as may be provided in
the Advisers Act. The Adviser agrees that it will notify the Client of any
change in the membership of the general partners of the Adviser within a
reasonable time after such change. This Agreement may be amended or modified at
any time by mutual agreement of the Client, Platinum UK and the Adviser in
writing.
Upon receipt by the Adviser from Platinum UK of a Notice of
Exclusive Control (as defined under Section 2.3(i) of the Control Agreement) the
Adviser shall cease management of the Investment Account as soon as reasonably
practicable until such time that it is provided written notice from Platinum UK
that it is instructed to recommence management of the Investment Account (the
"Suspension Period"). Upon receipt by the Adviser from Platinum UK of a Notice
of Revocation of that certain Power of Attorney, dated ____, 2002 (pursuant to
which Adviser is permitted by Platinum UK to give instructions to Custodian on
its behalf in accordance with the terms thereto, the "Power of Attorney"), the
Adviser shall immediately
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cease to give instructions to the Custodian on behalf of Platinum UK unless and
until the Adviser receives a substitute power of attorney on the same terms as
the revoked Power of Attorney or on such other terms as may be mutually agreed
between the Adviser and Platinum UK. The Adviser shall not be liable for any
resulting investment or other loss, if any incurred by or charged to the
Investment Account resulting from either (i) the Notice of Exclusive Control, or
(ii) delays incident to obtaining any consent from Platinum UK with respect to
any action proposed to be taken with respect to the Investment Account that is
required pursuant to the Control Agreement. Fees shall continue to accrue during
the Suspension Period.
23. Counterparts
This Agreement may be executed in two or more counterparts,
each one of which shall be deemed to be an original.
24. Governing Law
To the extent Federal law does not apply, this Agreement shall
be construed in accordance with and governed by the laws of the State of New
York.
25. Entire Agreement
This Agreement constitutes the entire agreement of the parties
with respect to management of the Investment Account.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective representatives as of the date first above written.
PLATINUM UNDERWRITERS BERMUDA, LTD.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: COO
ADDRESS: Clarendon House
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
PLATINUM RE (UK) LIMITED
BY: /s/ ▇. ▇. ▇▇▇▇▇▇
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Name: ▇. ▇. ▇▇▇▇▇▇
Title: Finance Director
ADDRESS: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
ALLIANCE CAPITAL MANAGEMENT L.P.
BY: Alliance Capital Management
Corporation, its General Partner
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Assistant Secretary
ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
cc: Managing Director, Institutional Asset
Management
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New Account Documentation
for
Platinum Underwriters Bermuda, Ltd.
The Adviser will require the documents identified below to establish its
investment management relationship with Platinum Underwriters Bermuda, Ltd.
1. Fully executed advisory agreement (with fee schedule attached).
2. Accurate list of securities to be transferred to new account unless
initially consisting of cash or cash equivalents.
3. Written statement of investment objectives, guidelines and
restrictions, if any.
4. Form W-9/W-8, as applicable.
5. List of Authorized Signatories.
6. Certified resolution of the Board of Directors or appropriate Committee
authorizing appointment of the Adviser as investment adviser.
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EXHIBIT A
ALLIANCE CAPITAL MANAGEMENT L.P.
FIXED INCOME INSURANCE ASSET MANAGEMENT FEES
PREPARED FOR
Platinum Underwriters Bermuda, Ltd.
FOR MINIMUM FIXED INCOME ACCOUNT SIZE OF $1 BILLION
Fee Assets
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0.19% on the first $100 million
0.14% on the next $150 million
0.11% on the next $250 million
0.10% on the balance
FOR FIXED INCOME ASSETS LESS THAN $1 BILLION
Fee Assets
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0.20% on the first $ 100 million
0.15% on the next $ 150 million
0.12% on the next $ 250 million
0.10% on the balance
SCHEDULE A
INVESTMENT GUIDELINES
INVESTMENT GUIDELINES
PLATINUM UNDERWRITERS BERMUDA LIMITED
PLATINUM RE (UK)LIMITED
INVESTMENT OBJECTIVE:
The Fund's assets are managed to provide a high degree of investment income
subject to risk, guidelines, appropriate liquidity considerations, and tax
efficiency.
Other objectives include to maintain or enhance the Platinum Group's
[Financial/Credit] rating and to generate a superior long-term total rate of
return versus a benchmark.
PORTFOLIO DURATION:
The targeted duration of the portfolio will be that of the liability stream,
which Platinum will provide as needed. If no liability stream is available, a
duration target of 3.5 years will apply. The portfolio could deviate as much as
+/- one year away from this target. There is no limitation placed on the
duration of individual securities.
PORTFOLIO CREDIT QUALITY:
The average quality of the managed fund should be no less than A/A2.
DIVERSIFICATION
SECURITY PARAMETERS: LIMITS
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SECURITY: RATING:
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i. GOVERNMENT Government securities issued by OECD Governments AA-/Aa3 or 100% per issuer
better 100% of portfolio
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ii. MONEY MARKETS Repurchase and reverse repurchase agreements 3% per issuer 100% of
portfolio
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Negotiable Certificates of Deposit and Time A-/A3 or better 3% per issuer 100% of
Deposits, Demand Notes and Funding Agreements portfolio
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Commercial paper, including finance company paper A1/P1 or better 3% per issuer 100% of
and asset-backed commercial paper portfolio
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iii. MORTGAGE BACKED Mortgage backed securities whose collateral is A/A2 or better 5% per issuer 30% of
SECURITIES AND guaranteed by FNMA, FHLMC or GNMA - agency portfolio
ASSET-BACKED mortgage backed securities (pass-throughs and CMOs)
SECURITIES
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Asset-backed securities (an asset-backed security
issued by a discreet master trust will be thought A/A2 or better 5% per issuer 20%
of as an individual issuer) - Public and 144a of portfolio
asset-backed securities
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Publicly issued private label pass-throughs and A/A2 or better 5% per issuer 30% of
CMOs (excluding I/Os and P/Os) portfolio
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iv. COMMERCIAL MORTGAGE Commercial mortgage backed securities (including A/A2 or better 3% per issuer 10% of
BACKED SECURITIES REITS) portfolio
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v. MUNICIPAL BONDS Municipal securities, including "general A-/A3 or better 3% per issuer 100% of
obligation" and "revenue" bonds* portfolio
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Greater than 3% per issuer 10% of
BBB- portfolio
/Baa3, less than
A-/A3
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vi. CORPORATE SECURITIES Notes, debentures, medium term notes or secured A-/ A3 or better 3% per issuer 50% of
securities** portfolio
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BBB-/Baa3 or 3% per issuer 20% of
better portfolio
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Credit default swaps (only when the swap A-/A3 or better 3% per issuer 50% of
unfunded version} can create more investment portfolio
income than the bond for the same reference
entity).***
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BBB-/Baa3 or 3% per issuer 20% of
better portfolio
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vii. PREFERRED STOCKS Preferred Stocks including Perpetual, Sinking BBB-/Baa3 or 2.5% per issuer 10% of
Fund, Adjustable Rate and Fixed Rate better portfolio
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viii. SOVEREIGN AND Sovereign securities AA-/Aa3 or 50% per issuer 50% of
SUPRANATIONAL better portfolio
SECURITIES
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Supranational securities AA-/Aa3 or 50% per issuer 50% of
better portfolio
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The per issuer limitations are a function of the market value of the combined
accounts (US, Bermuda and UK).
The maximum percentage for all securities rated BBB/Baa is 20% of the portfolio.
A maximum of 30% of the portfolio to be invested in iii. Above.
OTHER RESTRICTIONS:
Futures and options are permitted, provided the instrument is used as a hedge,
with specific prior approval from Platinum.
- Swaps
- Futures
- Exchange traded options
- Over-the-counter options
Structured securities or securities with embedded options are permitted.
Leverage is not permitted.
In the case of a split rating, the lower of the ratings available shall apply.
Should a security be downgraded below investment grade (BBB-/Baa3) the manager
must notify and consult with Platinum as soon as reasonably practicable,
regarding the optimal timing of the disposal.
For securities with variable principal repayment, the estimated duration should
be used with respect to the duration restrictions.
All holdings must be denominated in the base currency of the relevant portfolio
(but including legacy currencies in the case of Euros).
WITHHOLDING TAXES:
No investments shall be made that give rise to withholding taxes unless the
after-tax returns are competitive with available returns on which withholding
taxes are not imposed, which will ordinarily only occur where the investor is
able to utilize the withheld taxes as a credit against its domestic income tax
liability. In general investments made with respect to the Bermuda account will,
in the case of securities issued by U.S. issuers, be limited to securities that
are eligible for the " portfolio interest exemption"- i.e., essentially
securities that are in registered form and not issued by a 10% or more
shareholder of Platinum Holdings.
KEY:
* General obligation bonds are secured by the issuer's pledge of its full
faith, credit and taxing power for the payment of principal and
interest. Revenue or special tax bonds are payable only from the
revenues derived from a particular facility or class of facilities or,
in some cases, from the proceeds of a special excise or other tax, but
not from general tax revenues. Municipal bonds will be utilized when
there is an after-tax benefit to the portfolio.
** No more than 25% of the portfolio assets can be invested in an
industry.
*** For Credit Default Swaps, the rating of the reference entity will serve
as the rating for the Swap.
****
