AGREEMENT
Exhibit 4.15
AGREEMENT
This
Agreement (“Agreement”) is effective as of
August 10, 2007 (the “Effective
Date”), by and among Max Capital Group Ltd., a Bermuda holding company (the “Requesting Party”),
located at Xxx Xxxxx, 0 Xxxxx Xxxxxx, Xxxxxxxx XX 11, Bermuda, Max Capital Trust I, a Delaware
Trust (“Trust”), located at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000, and C T
Corporation Staffing, Inc., a Delaware corporation (“CT”), located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
WHEREAS, CT provides the service of acting as “trustee in state” under the Delaware Business
Trust Act under certain limited circumstances; and
WHEREAS, Requesting Party has requested that CT provide such service with respect to the Trust
under the circumstances set forth in Rider A attached hereto; and
WHEREAS, CT and the Trust have agreed that CT shall provide such service.
NOW, THEREFORE, in consideration of the premises, the parties hereto hereby agree as follows.
1. Contract Period and Termination. The term of this Agreement will be initially for one (1)
year from the Effective Date and will be automatically extended for successive one (1) year
periods, unless at anytime any party elects to terminate this Agreement and gives at least thirty
(30) days prior written notice of termination to each other party.
2. Services. At the request of the Requesting Party, the Trust hereby retains CT to serve the
Trust solely to fulfill the Trust’s obligation pursuant to Section 3807(a) of the Delaware
Statutory Trust Act (the “Act”) to have at least one trustee who has its principal place of
business in the State of Delaware, subject to the terms and conditions of this Agreement.
3. Fees. During the term of this Agreement, the Trust shall pay CT on the Effective Date, and
on every annual anniversary of the Effective Date thereafter, the then-current annual fee in
effect. Such annual fee may be reviewed and revised on an annual basis at the sole discretion of
CT. In the event of an early termination of this Agreement by CT, CT will provide a pro-rata
refund of any fees paid in advance for the year in which such termination is effectuated. In
addition, the Trust shall promptly reimburse CT for any expense incurred under or relating to this
Agreement or the services of CT, including the fees and expenses of outside counsel or other
advisors retained by CT.
4. Obligations of the Trust. The Trust agrees to take each of the following actions:
a. Upon termination of this Agreement, not to obstruct or otherwise interfere with the
resignation by CT as a trustee of the Trust;
b. Upon the Effective Date, name CT as an insured party under the Trust’s errors and
omissions liability insurance policy (if applicable) in a manner acceptable to CT in the
reasonable exercise of its discretion and deliver a certificate to
CT evidencing such
coverage, and maintain such policy during the term of this Agreement or notify CT of any
material changes thereto, including changes in the amount or conditions of coverage; and
c. In the event any matter comes before CT in its capacity as trustee for its
consideration, the Trust agrees, upon the request of CT and at its sole discretion, to
provide CT with reasonable time and assistance to investigate the matter and perform
adequate due diligence in connection therewith. Such due diligence may include, at CT’s
sole discretion, the engagement of independent legal counsel or other advisors to provide
additional guidance and assistance to CT.
5. Governing Instrument of Trust. The Trust and the Requesting Party hereby agree to the
terms and conditions of the following italicized language in this Paragraph. The declaration of
trust (or other governing instrument) of the Trust (the “Declaration of Trust”) shall include or be
amended to include the following italicized language or language substantially similar thereto:
CT is serving the Trust solely to fulfill the Trust’s obligation pursuant to Section
3807(a) of the Act to have at least one trustee who has its principal place of
business in the State of Delaware;
the Trust shall have at least one other trustee other than CT to perform all
obligations and duties other than fulfilling the Trust’s obligations pursuant to
Section 3807(a) of the Act;
CT shall not be liable to the Trust or its beneficiaries for any of its acts or
omissions except for acts or omissions constituting bad faith or willful misconduct;
CT shall not have any duty or obligation to manage or deal with the Trust’s
property, or to otherwise take or refrain from taking any action under, or in
connection with, any document contemplated hereby to which CT is a party, except as
expressly provided by the terms of this Declaration of Trust, and no implied duties
or obligations shall be read herein against CT, including without limitation that no
action requested of CT shall require the performance of any investigation, analysis,
or other due diligence activities by CT in respect to such action or the performance
of its duties on behalf of the Trust generally;
pursuant to Section 3803(b) of the Act, CT shall not be liable to any person other
than the Trust or a beneficiary of the Trust for any act, omission or obligation of
the Trust or any trustee thereof and all persons having any claim against CT by
reason of the transactions contemplated by this Declaration of Trust or any other
agreement or instrument related to the Trust shall look only to the Trust’s property
for payment or satisfaction thereof; and
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pursuant to Section 3806(c) of the Act, to the extent that at law or in equity CT,
as trustee, has duties (including fiduciary duties) and liabilities relating to the
Trust or to beneficiaries thereof, CT’s duties and liabilities are hereby eliminated
and restricted to the fullest extent allowable under applicable law and CT shall not
be liable to the Trust or to any beneficial owner of the Trust for any action taken
in good faith reliance on the terms of this Declaration of Trust.
All capitalized terms in the above italicized language not otherwise defined in the above
italicized language, shall be defined in the Declaration of Trust or other governing instrument to
have the same meaning as set forth in this Agreement.
6. Indemnification. The Trust and the Requesting Party, and their respective affiliates
(collectively, the “Indemnifying Party”), shall jointly and severally indemnify, defend and hold
CT, its affiliated companies, and all of such companies’ employees, agents, officers and directors
(collectively, the “Indemnified Parties”) harmless from and against any and all claims, actions,
suits, demands, assessments, judgments, losses, liabilities, damages, costs, taxes, and expenses
(including, without limitation, reasonable attorneys’ and accounting fees and investigation costs)
that may be incurred by the Indemnified Parties arising out of or relating to any breach of any
representation or warranty, covenant, obligation or agreement of the Indemnifying Party contained
herein or in the Declaration of Trust or in anyway arising from the services provided or functions
performed by CT hereunder or thereunder, other than those arising solely from the bad faith or
willful misconduct of CT. In any event of the foregoing, CT may elect to retain counsel of its
choosing to represent the Indemnified Parties, and the Indemnifying Party shall pay such retained
counsel the reasonable fees associated therewith. In the event CT or any of its employees is
called upon to investigate or provide testimony in a matter to which this indemnity applies, it
shall be entitled to be reimbursed the reasonable charges related thereto.
7. Covenant Not to Xxx. Each of the Trust and the Requesting Party, and their respective
affiliates, represents, agrees and covenants that it will not file any complaint, proceeding,
lawsuit, or other legal or equitable action against CT based upon or arising out of any of the
services provided by CT hereunder or the Declaration of Trust, other than for reason of alleged bad
faith or willful misconduct by CT.
8. Additional Representations, Warranties and Covenants of Trust and Requesting Party. Each
of the Trust and the Requesting Party represents, warrants and covenants to CT and to each other
that, as of the Effective Date: (i) it has the right, power, and authority to enter into and to
perform its obligations under this Agreement; (ii) the execution, delivery and performance by it of
this Agreement have been duly authorized by all necessary trust or corporate action on its part;
and (iii) this Agreement constitutes its legal, valid, and binding obligation, enforceable against
it in accordance with its terms. In addition, the Trust represents, warrants and covenants to CT
that it has taken all appropriate acts under its Declaration of Trust to duly appoint CT to serve
as a trustee. The Trust and the Requesting Party
acknowledge that CT has expressly relied on each of the foregoing representations, warranties,
and covenants in entering into this Agreement.
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9. Independent Contractor Status and Authority. Each party to this Agreement hereby agrees,
and represents and warrants, that it is an independent contractor and is not any other party’s
agent or employee or partner or joint venturer for any purpose whatsoever.
10. Governing Law. This Agreement and the rights and duties of the parties hereto shall be
governed by the laws of the State of Delaware (without regard to principles of conflicts of law).
11. Additions or Modifications. No additions or modifications from the terms and conditions
of this Agreement will be binding upon any party hereto unless agreed to in writing by each party
hereto.
12. Assignment. No party may assign its rights and obligations under this Agreement without
the prior written consent of each other party.
13. Notices. All notices, requests, consents and invoices required or permitted under this
Agreement shall be in writing and delivered personally or sent by mail to the applicable party at
the addresses set forth on the first page of this Agreement or at such other address as shall be
given to each other party in writing.
14. No Damages. Each of the Requesting Party and the Trust agrees that in no event shall CT
be liable for lost profits, third-party claims or consequential or exemplary damages or, in
addition thereto, for any matters relating to any actions taken by the Trust prior to the Effective
Date.
15. Entire Agreement. This Agreement represents the entire understanding of the parties with
respect to the specific subject matter of this Agreement and supersedes all previous
understandings, written or oral, among the parties with respect to such subject matter.
[signature page follows]
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[Signature Page to Trust Agreement]
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed as of the date
first above written.
| MAX CAPITAL GROUP LTD. | ||||||
| By: | /s/ Xxxxx Xxxxxx | |||||
| Name: | ||||||
| Title: | Executive Vice President and Chief Operating Officer | |||||
| /s/ Xxxxx Xxxxxx | ||||||
| as Regular Trustee | ||||||
| Name: | Xxxxx Xxxxxx | |||||
| /s/ Xxxxxx Xxxxxxx | ||||||
| as Regular Trustee | ||||||
| Name: | Xxxxxx Xxxxxxx | |||||
| C T CORPORATION STAFFING, INC., | ||||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxxx X. Xxxxxxxx | |||||
| Title: | Vice President | |||||
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EXHIBIT A
DECLARATION OF TRUST OF MAX CAPITAL TRUST I
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EXHIBIT B
CERTIFICATE OF TRUST OF MAX CAPITAL TRUST I
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