EXHIBIT 10.2
EXECUTION COPY
ASSET TRUST EXPENSE REIMBURSEMENT AGREEMENT
THIS ASSET TRUST EXPENSE REIMBURSEMENT AGREEMENT (this "Agreement"), dated
as of December 10, 2004, is between XL Financial Assurance Ltd., a Bermuda
exempted company ("XLFA"), and Twin Reefs Asset Trust, a Delaware statutory
trust (the "Asset Trust"). Capitalized terms used but not defined in this
Agreement have the meaning ascribed to them in the Amended and Restated
Declaration of Trust (the "Asset Trust Declaration"), dated as of December 10,
2004, by and among UBS Securities LLC and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as Depositors, The Bank of New York (Delaware), as Trustee and
Delaware Trustee, GSS Holdings II, Inc., as Tax Matters Partner (the "Tax
Matters Partner") and XLFA, creating the Asset Trust, as such Asset Trust
Declaration may be amended and restated from time to time.
WHEREAS, XLFA and the Asset Trust have entered into a Put Option Agreement
(the "Put Option Agreement"), dated as of December 10, 2004;
WHEREAS, the Asset Trust is willing to enter into the Put Option Agreement
only if XLFA executes and delivers an Expense Reimbursement Agreement
substantially in the form hereof;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Asset Trust and XLFA agree as follows:
ARTICLE 1
SECTION 1.01. Reimbursement. Subject to the terms and conditions set forth
herein, XLFA hereby irrevocably and unconditionally agrees to reimburse the
Asset Trust for the Expenses (as defined below) of the Asset Trust. Payment of
such reimbursement with regard to Expenses in any Distribution Period shall be
due not later than 12:00 P.M., New York City time, on the Collection Date
falling in such Distribution Period (other than any date on which the Asset
Trust is liquidated). XLFA shall not be obligated to reimburse the Asset Trust
for any cost, claim, expense, damage, liability or disbursement except as
expressly set forth in this Agreement or in the Put Option Agreement.
As used herein, "Expenses" means a portion of any and all reasonable
expenses of the Asset Trust, including without limitation (x) the Trustee's
Ordinary Fees and Expenses payable by the Asset Trust pursuant to the Asset
Trust Declaration, (y) the Tax Matters Partner's fees and expenses payable by
the Asset Trust pursuant to the Tax Matters Partner Agreement and (z) all
expenses of the Pass-Through Trust, which are reimbursable by the Asset Trust
pursuant to the Pass-Through Trust Expense Reimbursement Agreement, determined
in each case by multiplying the full amount of such fees and expenses by a
fraction, the numerator of which is the aggregate liquidation preference of all
the Series B Preferred Shares outstanding as of such Collection Date, and the
denominator of which is the aggregate outstanding Face Amount of the Asset Trust
Securities on such Collection Date. The terms "Face Amount", "Asset Trust
Securities" and "Collection Date" have the meanings assigned to them in the
Asset Trust Declaration.
Notwithstanding the foregoing, in the event of a bankruptcy, insolvency,
liquidation, winding-up, receivership or conservation of XLFA, neither the
Trustee, the Tax Matters Partner, the Pass-Through Trust nor the Asset Trustee
shall have any claim against XLFA for any amounts due under this Agreement.
SECTION 1.02. Term of Agreement. This Agreement shall terminate and be of
no further force and effect upon the later of (a) the date on which the Put
Option Agreement is terminated and the Asset Trust holds no Series B Preferred
Shares and (b) the date on which there are no amounts due and payable to the
Asset Trust in accordance with the terms of this Agreement. Except as provided
in the preceding sentence, this Agreement is continuing, irrevocable,
unconditional and absolute.
SECTION 1.03. Waiver of Notice. XLFA hereby waives presentment, demand for
payment, protest, notice of nonpayment, notice of dishonor, notice of redemption
and all other notices and demands, except as expressly provided herein.
SECTION 1.04. No Impairment. Except as provided in the last paragraph of
Section 1.01, the obligations, covenants, agreements and duties of XLFA under
this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment of all or any portion of the
Expenses or for the performance of any other obligation under, arising out
of, or in connection with, the Expenses; and
(b) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of debt of, or other similar proceedings affecting, the Asset
Trust or any of the assets of the Asset Trust.
SECTION 1.05. Subrogation. XLFA waives all rights of subrogation to any
rights of the Asset Trust in respect of any amounts paid to any person by XLFA
under this Agreement.
ARTICLE 2
SECTION 2.01. Binding Effect. This Agreement shall bind the successors,
assigns, receivers, trustees and representatives of XLFA and shall inure to the
benefit of those persons to whom Expenses are due and payable by the Asset
Trust.
SECTION 2.02. Amendments. So long as there remain any Asset Trust
Securities outstanding, this Agreement shall not be modified or amended without
the consent of a Majority in Face Amount of Asset Trust Securities; provided,
however, that Section 2.05 may not be
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amended without the consent of the Trustee and Section 2.06 may not be amended
without the consent of the Trustee, the Tax Matters Partner or the Pass-Through
Trust, as applicable.
Notwithstanding the preceding paragraph of this Section 2.02, this
Agreement may be modified or amended without the consent of a Majority in Face
Amount of Asset Trust Securities
(a) to cure any ambiguity; or
(b) to correct or supplement any provision in this Agreement that may
be defective or inconsistent with any other provision of this Agreement;
provided, however, that any such modification or amendment made pursuant to (a)
or (b) of this Section 2.02 shall be void if such modification or amendment
adversely affects any Holder.
SECTION 2.03. Notices. Any notice, request or other communication required
or permitted to be given hereunder shall be given in writing by delivering the
same against receipt therefor by facsimile transmission (confirmed by mail),
telex or by registered or certified mail, addressed as follows (and if so given,
shall be deemed given when mailed).
If to the Asset Trust, to:
Twin Reefs Asset Trust
x/x Xxx Xxxx xx Xxx Xxxx (Delaware)
Xxxxx Xxxx Xxxxxx Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Corporate Trust Administration
Facsimile: (000) 000-0000
With a copy to:
The Bank of New York
000 Xxxxxxx Xxxxxx - 0 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Dealing and Trading Group
Facsimile: (000) 000-0000
If to XLFA, to:
XL Financial Assurance Ltd.
XX Xxxxx
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx XX00
Xxxxxxx
Attn: Xxxxxxx Xxxxxx Xxxxx
Facsimile: 000-000-0000
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SECTION 2.04. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.05. Jurisdiction. Each of the parties hereto irrevocably submits
to the non-exclusive jurisdiction of the courts of the State of New York in
respect of any action or proceeding arising out of or in connection with this
Agreement ("Proceedings"). Each of the parties hereto irrevocably waives, to the
fullest extent permitted by applicable law, any objection that it may now or
hereafter have to the laying of the venue of any such Proceedings in the courts
of the State of New York and any claim that any Proceeding brought in any such
court has been brought in an inconvenient forum. Each of the Asset Trust and
XLFA agrees that it shall at all times have an authorized agent in the State of
New York upon whom process may be served in connection with any Proceedings, and
each of the Asset Trust and XLFA hereby authorizes and appoints CT Corporation
System to accept service of all legal process arising out of or connected with
this Agreement in the State of New York and service on such person shall be
deemed to be service on the Asset Trust or XLFA, as the case may be. If for any
reason such person shall cease to act as agent for the service of process, each
of the Asset Trust and XLFA shall promptly appoint another such agent, and shall
forthwith notify the other of such appointment. The submission to jurisdiction
reflected in this paragraph shall not (and shall not be construed so as to)
limit the right of any person to take Proceedings in any court of competent
jurisdiction, nor shall the taking of Proceedings in any one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction
(whether concurrently or not) if and to the extent permitted by law.
SECTION 2.06. Limitation of Liability. It is expressly understood that (i)
this Agreement is executed and delivered by The Bank of New York (Delaware), not
individually or personally but solely as Trustee, in the exercise of the powers
and authority conferred and vested in it under the Asset Trust Declaration, (ii)
each of the representations, undertakings and agreements herein made on the part
of the Asset Trust is made and intended not as personal representations,
undertakings and agreements by The Bank of New York (Delaware), but is made and
intended for the purpose of binding only the Asset Trust and (iii) under no
circumstances shall The Bank of New York (Delaware), be personally liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the Asset Trust under this Agreement or any other related
document.
SECTION 2.07. Third-Party Beneficiary. Each of the Trustee, the Tax Matters
Partner and the Pass-Through Trust is a third-party beneficiary to this
Agreement and is entitled to the rights and benefits hereunder and may enforce
the provisions hereof as if it were a party hereto.
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This Agreement is executed as of the day and year first above written.
TWIN REEFS ASSET TRUST
By: The Bank of New York (Delaware), not in
its individual capacity but solely as Trustee
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
Title: Asst. Vice President
XL FINANCIAL ASSURANCE LTD.
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Deputy Chairman &
Chief Operating Officer
