Exhibit 10.1
May 20, 2005
Platinum Underwriters Holdings, Ltd.
Platinum Underwriters Finance, Inc.
Series A 7.50% Notes due June 1, 2017
Purchase Agreement
May 20, 2005
Goldman, Sachs & Co.
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Platinum Underwriters Finance, Inc.,
a Delaware corporation (“Platinum Finance”) proposes,
subject to the terms and conditions stated herein, to issue and
sell to Goldman, Sachs & Co. (the “Purchaser”) an
aggregate of $250,000,000 principal amount of its Series A
7.50% Notes due June 1, 2017 (the “Securities”),
unconditionally guaranteed (the “Guarantees”) by
Platinum Underwriters Holdings, Ltd., a Bermuda company (the
“Company”), on a senior, unsecured basis. The
Securities and the Guarantees will be issued pursuant to an
Indenture, to be dated May 26, 2005 (the “Base
Indenture”), among the Company, Platinum Finance and JPMorgan
Chase Bank, N.A. as Trustee (the “Trustee”), as
supplemented by the First Supplemental Indenture, to be dated
May 26, 2005 (the “First Supplemental Indenture”
and, together with the Base Indenture, the “Indenture”)
among the Company, Platinum Finance and the Trustee as the same
will be amended by a Series B Supplemental Indenture (the
“Series B Supplemental Indenture”) to be entered
into among the Company, Platinum Finance and the Trustee, in
relation to the Exchange Securities (as defined in
Section 5(d)).
The Company conducts its business
through its wholly-owned direct or indirect operating subsidiaries,
Platinum Underwriters Reinsurance, Inc., a Maryland corporation
(“Platinum US”), Platinum Re (UK) Limited, a U.K.
company (“Platinum UK”), and Platinum Underwriters
Bermuda, Ltd., a Bermuda company (“Platinum Bermuda”).
The Company owns Platinum US and Platinum UK through its
wholly-owned intermediate subsidiary, Platinum Regency Holdings, an
Irish company (“Platinum Ireland” and, together with
Platinum UK and Platinum Bermuda, the “Non-U.S.
Subsidiaries”). Platinum US is owned directly by Platinum
Finance, which is a wholly-owned subsidiary of Platinum
Ireland.
[Senior Notes Purchase Agreement]
1. The Company and Platinum
Finance, jointly and severally, represent and warrant to, and agree
with the Purchaser that:
(a) A preliminary offering circular,
dated May 16, 2005 (the “Preliminary Offering
Circular”) and an offering circular, dated May 20, 2005
(the “Offering Circular”), which incorporate by
reference the Company’s Annual Report on Form 10-K for the
fiscal year ended December 31, 2004 (including information
specifically incorporated by reference into such Form 10-K from the
Company’s definitive Proxy Statement for its 2005 annual
meeting of shareholders) (the “Form 10-K”) and
Quarterly Report on Form 10-Q for the quarter ended March 31,
2005, have been prepared in connection with the offering of the
Securities and the Guarantees. Any reference to the Preliminary
Offering Circular or the Offering Circular shall be deemed to refer
to and include the Company’s most recent Annual Report on
Form 10-K and all subsequent documents filed with (but not
furnished to) the United States Securities and Exchange Commission
(the “Commission”) pursuant to Section 13(a),
13(c) or 15(d) of the United States Securities Exchange Act of
1934, as amended (the “Exchange Act”) on or prior to
the date of the Preliminary Offering Circular or the Offering
Circular, as the case may be. Any reference to the Preliminary
Offering Circular or the Offering Circular, as the case may be, as
amended or supplemented, as of any specified date, shall be deemed
to include (i) any documents filed with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act
after the date of the Preliminary Offering Circular or the Offering
Circular, as the case may be, and prior to such specified date;
provided, however, such subsequently filed documents shall not
include any Current Reports on Form 8-K, or portions of such
reports, that are deemed to be furnished to, rather than filed
with, the Commission and (ii) any Additional Issuer
Information (as defined in Section 5(f)) furnished by the
Company prior to the completion of the distribution of the
Securities; and all documents filed under the Exchange Act and so
deemed to be included in the Preliminary Offering Circular or the
Offering Circular, as the case may be, or any amendment or
supplement thereto are hereinafter called the “Exchange Act
Reports”. The Exchange Act Reports, when they were or are
filed with the Commission, conformed or will conform in all
material respects to the applicable requirements of the Exchange
Act and the applicable rules and regulations of the Commission
thereunder. The Preliminary Offering Circular or the Offering
Circular and any amendments or supplements thereto and the Exchange
Act Reports did not and will not, as of their respective dates,
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company or Platinum Finance by the Purchaser
expressly for use therein;
(b) Neither the Company nor any of
its subsidiaries has sustained since the date of the latest audited
financial statements included, or incorporated by reference, in the
Offering Circular any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth
or contemplated in the Offering Circular; and, since the respective
dates as of which information is given in the Offering Circular,
there has not been any change in the capital stock or the capital
or surplus or long-term debt of the Company or Platinum Finance
(other than upon exercise of director or employee options in the
ordinary course of business pursuant to an employee benefit plan
of
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the Company currently in existence, or upon the exercise,
conversion or exchange of convertible or exchangeable securities or
options in the ordinary course of business outstanding as of the
date of this Agreement or upon the exercise of the purchase
contracts forming a part of the Company’s equity security
units in the ordinary course of business outstanding as of the date
of this Agreement) or any of its subsidiaries or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management,
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Offering
Circular;
(c) The Company and its subsidiaries
have good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Offering Circular or
such as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and
enforceable (by and against the Company) sub-leases and assignments
of leases with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
the Company does not own any real property;
(d) The Company has been duly
incorporated and is validly existing as a company in good standing
under the laws of Bermuda, with corporate power and authority to
own its properties and conduct its business as described in the
Offering Circular, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction; each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation or a company
in good standing under the laws of its jurisdiction of
organization, with corporate power and authority to own its
properties and conduct its business as described in the Offering
Circular, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction;
(e) The Company has an authorized
capitalization as set forth in the Offering Circular, and all of
the issued shares of capital stock of the Company have been duly
authorized and validly issued, are fully paid and non-assessable
and conform in all material respects to the description of the
capital stock contained in the Offering Circular; all of the issued
shares
of capital stock of each subsidiary of the Company have been duly
authorized and are validly issued, fully paid and non-assessable
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims; except as described
in the Form 10-K under the captions “Related Party
Transactions—Transactions with St. Paul and Its
Subsidiaries” and “Related Party
Transactions—Transactions with RenaissanceRe and Its
Subsidiaries,” and in the Offering Circular under the caption
“Description of Our Share Capital,” the holders of
outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to acquire the Securities and no
party has the right to require the
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Company to register securities; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or
options to purchase from the Company, or obligations of the Company
to issue, Common Shares or any other class of capital stock of the
Company (except upon the exercise of the purchase contracts forming
a part of the Company’s equity security units and as set
forth in the Form 10-K under the captions “Related Party
Transactions—Transactions with St. Paul and Its
Subsidiaries” and “Related Party
Transactions—Transactions with RenaissanceRe and Its
Subsidiaries,” and in the Offering Circular under the caption
“Description of Our Share Capital”); there are no
restrictions on subsequent transfers of the Securities or the
Guarantees under the laws of Bermuda or the United States (other
than, pursuant to the securities laws of the United States or any
state securities or Blue Sky laws, by affiliates of the Company and
other than as described in the Offering Circular under the caption
“Description of Our Share Capital”);
(f) The Securities have been duly
authorized by Platinum Finance and, when the Securities are duly
executed, authenticated, issued and delivered and paid for by the
Purchaser as provided herein and in the Indenture, the Securities
will constitute valid and legally binding obligations of Platinum
Finance, enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles, and will
be in the form contemplated by, and will be entitled to the
benefits of, the Indenture; the Securities will conform in all
material respects to the description thereof contained in the
Offering Circular and will be in substantially the form previously
delivered to you;
(g) The Guarantees have been duly
authorized by the Company and, upon the due execution,
authentication, issuance and delivery of the Securities and payment
therefor by the Purchaser, as provided herein and in the Indenture,
and the due endorsement of the Guarantees thereon, such Guarantees
will have been duly executed and delivered and will constitute a
valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles, and will be in the form contemplated
by, and will be entitled to the benefits of, the Indenture; and the
Guarantees will conform in all material respects to the description
thereof contained in the Offering Circular and will be in
substantially the form previously delivered to you;
(h) The Indenture has been duly
authorized by each of Platinum Finance and the Company and, when
executed and delivered by Platinum Finance, the Company, and the
Trustee, and assuming the Indenture is a valid and legally binding
obligation of the Trustee, enforceable against the Trustee in
accordance with its terms, will constitute a valid and legally
binding obligation of the Company and Platinum Finance, enforceable
against the Company and Platinum Finance in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity
principles; and the Indenture will conform in all material respects
to the description thereof in the Offering Circular and will be in
substantially the form previously delivery to you;
(i) None of the transactions
contemplated by this Agreement and the 2005 Registration Rights
Agreement (including, without limitation, the Guarantees and the
use of the proceeds from the sale of the Securities) will violate
or result in a violation of Section 7 of
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the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board
of Governors of the Federal Reserve System;
(j) Prior to the date hereof, neither
the Company, Platinum Finance, nor any of their respective
affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result
in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Securities or facilitate the
sale or resale of the Securities and the Guarantees;
(k) The issue and sale of the
Securities and the Guarantees, the issuance and delivery of the
Exchange Securities and the compliance by Platinum Finance and the
Company with all of the provisions of the Securities, the Exchange
Securities (as defined in Section 5(d) hereof), the Guarantees, the
Indenture, this Agreement, the Exchange and Registration Rights
Agreement to be dated as of May 26, 2005 (the “2005
Registration Rights Agreement”), among Platinum Finance, the
Company and the Purchaser, and the Jurisdiction Agreement, dated as
of the date hereof (the “Jurisdiction Agreement”),
among Platinum Finance, the Company and the Purchaser, and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give
rise to a right of termination under (i) the memorandum of
association or bye-laws or other organizational document of the
Company or any of its subsidiaries, (ii) any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the properties or assets of the Company or any
of its subsidiaries is subject, or (iii) any statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, other than, in the case of
clause (ii) or (iii), such conflicts, breaches, violations,
defaults and termination rights which (A) would not,
individually or in the aggregate, have a material adverse effect on
the consolidated financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole, (B) affect the due authorization and enforceability
in accordance with their terms of the Securities, or (C) would
not adversely affect the consummation of the transactions
contemplated hereunder;
(l) Neither the Company nor any of
its subsidiaries is in violation of its memorandum of association
or bye-laws or other organizational documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(m) Each of the Company and Platinum
Finance has all requisite corporate power and authority to enter
into this Agreement, the 2005 Registration Rights Agreement, the
Jurisdiction Agreement and the Indenture; and each of this
Agreement and the Jurisdiction Agreement has been duly authorized,
executed and delivered by the Company and Platinum
Finance;
(n) The 2005 Registration Rights
Agreement has been duly authorized, and when executed and delivered
by the Company, Platinum Finance and the Purchaser, the
2005
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Registration Rights Agreement will constitute a valid and legally
binding obligation of the Company and Platinum Finance, enforceable
in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors rights and to
general equity principles; provided, however, that no
representation or warranty with respect to enforceability is made
with respect to the indemnity provisions in the 2005 Registration
Rights Agreement;
(o) The Exchange Securities have been
duly authorized by the Company and Platinum Finance and, when duly
executed, authenticated, issued and delivered in accordance with
the Indenture and the 2005 Registration Rights Agreement, the
Exchange Securities will constitute valid and legally binding
obligations of Platinum Finance and the Company, enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles, and will be in the form contemplated
by, and will be entitled to the benefits of, the Indenture; the
Exchange Securities will conform in all material respects to the
description thereof contained in the Offering Circular and will be
in substantially the form previously delivered to you;
(p) The statements set forth in the
Offering Circular under the captions “Business—Our
Business—Regulation,” “Description of
Notes,” “Description of Our Share Capital,”
“Material U.S. Federal Income Tax Considerations,”
“ERISA Considerations,” and “Underwriting,”
and in the Form 10-K under the caption “Related Party
Transactions,” insofar as they purport to describe the
provisions of the laws and documents referred to therein, are true
and complete in all material respects;
(q) Other than as set forth in the
Offering Circular under the caption “Business—Legal
Proceedings”, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the best of the
Company’s knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others;
(r) Each description of a contract,
document or other agreement in the Offering Circular accurately
reflects in all material respects the terms of the underlying
contract, document or other agreement; each contract, document or
other agreement set forth on Schedule I hereto (such listed
contracts, documents and other agreements, collectively, the
“Filed Agreements”) to which the Company or a
subsidiary of the Company is a party is in full force and effect
and is valid and enforceable by and against the Company or such
subsidiary, as the case may be, in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other laws now or
hereafter in effect affecting creditors’ rights generally,
(ii) the enforceability thereof is subject to the general
principles of equity (whether such enforceability is considered in
a proceeding in equity or at law) and (iii) no representation
or warranty is made with respect to the enforceability of
indemnification and contribution provisions relating to violations
under the Act contained in the Formation and Separation Agreement
(as defined in Schedule I hereto), the
6
Registration Rights Agreement (as defined in Schedule I
hereto), and the Transfer Restrictions and Registration Rights
Agreement (as defined in Schedule I hereto); neither the
Company nor any of its subsidiaries, if a subsidiary is a party,
nor to the Company’s knowledge, any other party is in default
in the observance or performance of any term or obligation to be
performed by it under any Filed Agreement, and no event has
occurred which with notice or lapse of time or both would
constitute such a default;
(s) Except as described in the
Offering Circular, no consent, approval, authorization,
registration or qualification of or with any governmental agency or
body or any court is required to be obtained or made by the Company
or any of its subsidiaries for the sale of the Securities and the
Guarantees, the issuance and delivery of the Exchange Securities,
and the consummation of the transactions contemplated by this
Agreement, the 2005 Registration Rights Agreement, the Jurisdiction
Agreement and the Indenture, except (i) such consents,
approvals, authorizations, registrations or qualifications as may
be required under state securities, Blue Sky or insurance
securities laws in connection with the purchase and distribution of
the Securities and the Guarantees by the Purchaser, (ii) such
consents, approvals, authorizations, registrations or
qualifications as may be required and have been obtained from the
Bermuda Monetary Authority, (iii) the filing of a registration
statement by Platinum Finance and the Company with the Commission
pursuant to the Act, (iv) such consents, approvals,
authorizations, registrations or qualifications that may be
required under the Trust Indenture Act, and (v) such consents,
approvals, authorizations, registrations or qualifications the
failure of which to obtain or make would not, individually or in
the aggregate have a material adverse effect on the consolidated
financial position, shareholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole,
or affect the due authorization and enforceability in accordance
with their terms of the Securities or the Exchange Securities (and
in each case, the Guarantees);
(t) When the Securities and the
Guarantees are issued, executed and delivered pursuant to this
Agreement, neither the Securities nor the Guarantees will be of the
same class (within the meaning of Rule 144A under the Act) as
securities which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a
U.S. automated inter-dealer quotation system;
(u) The Company is subject to
Section 13 of the Exchange Act;
(v) Neither the Company nor Platinum
Finance is, or after giving effect to the offering and sale of the
Securities, will be an “investment company”, as such
term is defined in the United States Investment Company Act of
1940, as amended (the “Investment Company
Act”);
(w) Except as described in the
Offering Circular, each of the Company and its subsidiaries is duly
licensed as an insurance holding company or as an insurer or
reinsurer, as the case may be, under the insurance laws (including
laws that relate to companies that control insurance companies) and
the rules, regulations and interpretations of the insurance
regulatory authorities thereunder (collectively, “Insurance
Laws”), of each jurisdiction in which the conduct of its
business as described in the Offering Circular requires such
licensing, except for such jurisdictions in which the failure of
the Company and its subsidiaries to be so licensed would not,
individually or in the aggregate, have a material adverse effect on
the
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consolidated financial position, shareholder’s equity or
results of operations of the Company and its subsidiaries, taken as
a whole; each of the Company and its subsidiaries has made all
required filings under applicable holding company statutes or other
Insurance Laws in each jurisdiction where such filings are
required, except for such jurisdictions in which the failure to
make such filings would not, individually or in the aggregate, have
a material adverse effect on the consolidated financial position,
shareholder’s equity or results of operations of the Company
and its subsidiaries, taken as a whole; except as described in the
Offering Circular, each of the Company and its subsidiaries has all
other necessary authorizations, approvals, orders, consents,
certificates, permits, registrations and qualifications of and from
all insurance regulatory authorities necessary to conduct their
respective businesses as described in the Offering Circular and all
of the foregoing are in full force and effect, except where the
failure to have such authorizations, approvals, orders, consents,
certificates, permits, registrations or qualifications or their
failure to be in full force and effect would not, individually or
in the aggregate, have a material adverse effect on the
consolidated financial position, shareholder’s equity or
results of operations of the Company and its subsidiaries, taken as
a whole; none of the Company or any of its subsidiaries has
received any notification from any insurance regulatory authority
or other governmental authority in the United States, Bermuda,
Ireland, the United Kingdom or elsewhere to the effect that any
additional authorization, approval, order, consent, certificate,
permit, registration or qualification is needed to be obtained by
either the Company or any of its subsidiaries; and no insurance
regulatory authority has issued any order or decree impairing,
restricting or prohibiting the payment of dividends by the Company
or any of its subsidiaries;
(x) The Company and its subsidiaries
own or possess or are licensed to use, or will be able to acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, services marks and
trade names that are necessary for the Company and its subsidiaries
to conduct the business of reinsurance in the manner and to the
extent described in the Offering Circular, and none of the Company
or any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any
of the foregoing, except for those which, if determined adversely
to the Company or any of its subsidiaries, would not have a
material adverse effect on the consolidated financial position,
shareholder’s equity or results of operations of the Company
and its subsidiaries, taken as a whole;
(y) Each of the Company and its
subsidiaries has filed all statutory financial returns, reports,
documents and other information required to be filed pursuant to
the applicable Insurance Laws of the United States and the various
states thereof, Bermuda, Ireland, the United Kingdom and each other
jurisdiction applicable thereto, and has duly paid all taxes
(including franchise taxes and similar fees) it is required to have
paid under the applicable Insurance Laws of the United States and
the various states thereof, Bermuda, Ireland, the United Kingdom
and each other jurisdiction applicable thereto, except where the
failure, individually or in the aggregate, to file such return,
report, document or information or to pay such taxes would not have
a material adverse effect on the consolidated financial position,
shareholders’ equity or results of operations of the Company
and its subsidiaries, taken as a whole; and each of the Company and
its subsidiaries maintains its books and records in accordance
with, and is otherwise in compliance with, the applicable Insurance
Laws of the United States and the various states thereof, Bermuda,
Ireland, the United Kingdom and each
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other jurisdiction applicable thereto, except where the failure to
so maintain its books and records or be in compliance would not
individually or in the aggregate have a material adverse effect on
the consolidated financial position, shareholders’ equity or
results of operations of the Company and its subsidiaries, taken as
a whole;
(z) Any tax returns required to be
filed by the Company or any of its subsidiaries in any jurisdiction
have been filed, except where the failure to file such returns
would not individually or in the aggregate have a material adverse
effect on the consolidated financial position, shareholders’
equity or results of operations of the Company and its
subsidiaries, taken as a whole, and any material taxes, including
any withholding taxes, excise taxes, penalties and interest,
assessments and fees and other charges due or claimed to be due
from such entities have been paid, other than any of those being
contested in good faith and for which adequate reserves have been
provided or any of those currently payable without penalty or
interest;
(aa) The Company and its subsidiaries
have not taken, and have no plan or intention to take, directly or
indirectly, any action that would or would be reasonably expected
to cause or result in the Company and/or any Non-U.S. Subsidiary
being treated as engaged in a trade or business within the United
States for purposes of the Internal Revenue Code of 1986, as
amended;
(bb) No stamp or other issuance or
transfer taxes or duties and no capital gains, income, withholding
or other taxes are payable by or on behalf of the Purchaser to
Bermuda or any political subdivision or taxing authority thereof or
therein in connection with the issuance, sale and delivery by
Platinum Finance of the Securities and by the Company of the
Guarantees to or for the account of the Purchaser, in each case in
the manner contemplated by this Agreement to the Purchaser, the
sale and delivery outside Bermuda by the Purchaser of the
Securities (and the Guarantees) to the initial purchasers thereof
or the issuance and delivery of the Exchange Securities (and the
Guarantees) in the manner contemplated by the 2005 Registration
Rights Agreement; and no registration, documentary, recording,
transfer or other similar tax, fee or charge by any Bermuda
government authority is payable in connection with the execution,
delivery, filing, registration or performance of this Agreement or
the 2005 Registration Rights Agreement;
(cc) There are no currency exchange
control laws, in each case of Bermuda, the United Kingdom or
Ireland (or any political subdivision or taxing authority thereof),
that would be applicable to the payment of interest on the
Securities or the Exchange Securities by Platinum Finance or the
Guarantees by the Company or the Company (other than as may apply
to residents of Bermuda for Bermuda exchange control purposes). The
Company and Platinum Bermuda are “exempted companies”
under Bermuda law and have not (i) acquired and do not hold
any land in Bermuda, other than that held by way of lease or
tenancy for terms of not more than 21 years, without the
express authorization of the Bermuda legislature, (ii) taken
mortgages on land in Bermuda to secure an amount in excess of
$50,000, without the consent of the Bermuda Minister of Finance,
(iii) acquired any bonds or debentures secured by any land in
Bermuda (other than certain types of Bermuda government
securities), or (iv) conducted their business in a manner that is
prohibited for “exempted companies” under Bermuda law.
Neither the Company nor Platinum Bermuda has received notification
from the Bermuda Monetary Authority or any other Bermuda
governmental authority of proceedings relating to the modification
or revocation of its
9
designation as nonresident for exchange control purposes or its
status as an “exempted company”;
(dd) Under the Jurisdiction
Agreement, each of the Company and Platinum Finance has validly and
irrevocably submitted to the non-exclusive jurisdiction of any
United States Federal or State court in the Borough of Manhattan,
the City of New York, or the State of New York (a “New York
Court”) with respect to suits, actions or proceedings brought
by the Purchaser or by any person who controls the Purchaser within
the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act against the Company or Platinum Finance arising
out of or in connection with violations of United States federal
securities laws relating to offers and sales of the Securities (and
the Guarantees), and has validly and irrevocably waived, to the
fullest extent permitted by law, any objections that it may now or
hereafter have to the laying of venue of any such suit, action or
proceeding brought in any New York Court based on or arising under
this Agreement or any claims that any such suit, action or
proceeding brought in any New York Court has been brought in an
inconvenient forum; and, under the Jurisdiction Agreement, each of
the Company and Platinum Finance has duly and irrevocably appointed
CT Corporation System as its agent to receive service of process
with respect to actions arising out of or in connection with any
such suit, action or proceeding, and service of process on CT
Corporation System effected in the manner set forth in the
Jurisdiction Agreement will be effective under the laws of Bermuda
to confer personal jurisdiction over the Company;
(ee) The financial statements
included or incorporated by reference in the Offering Circular,
together with the related schedules and notes, present fairly in
all material respects the financial position of the Company and its
subsidiaries on a consolidated basis as of the dates indicated and
the results of operations, stockholders’ equity and cash
flows of the Company and its subsidiaries on a combined basis for
the periods indicated; such financial statements have been prepared
in conformity with generally accepted accounting principles in the
United States (“GAAP”) applied on a consistent basis
throughout the periods involved; the financial statement schedules,
if any, included or incorporated by reference in the Offering
Circular present fairly in all material respects the information
required to be stated therein; the selected financial data included
or incorporated by reference in the Offering Circular present
fairly in all material respects the information shown therein and
have been compiled on a basis consistent in all material respects
with that of the audited financial statements included or
incorporated by reference in the Offering Circular, as the case may
be;
(ff) The combined statements of
underwriting results and identifiable underwriting cash flows of
the Reinsurance Underwriting Segment of the St. Paul Travelers
Companies, Inc. (“Predecessor”) incorporated by
reference in the Offering Circular (i) present fairly in all
material respects the underwriting results and identifiable
underwriting cash flows of Predecessor for the period from
January 1, 2002 through November 1, 2002;
(ii) comply as to form in all material respects with the
applicable accounting requirements of the Act; and (iii) have
been prepared in conformity with GAAP applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein);
(gg) The selected financial
information with respect to the results of operations of
Predecessor for the period ended November 1, 2002 and for each
of the years ended
10
December 31, 2001 and 2000 included in the Offering Circular
(i) present fairly in all material respects the financial
position and results of operations of Predecessor for the period
ended November 1, 2002 and for each of the years ended
December 31, 2001 and 2000; and (ii) have been prepared
in conformity with GAAP applied on a consistent basis throughout
the period involved (except as otherwise noted therein);
(hh) KPMG, LLP, who have certified
certain financial statements of Predecessor and the Company and its
subsidiaries, and have audited the Company’s internal control
over financial reporting and management’s assessment thereof,
are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder;
(ii) No relationship, direct or
indirect, exists between or among any of the Company, Platinum
Finance or, to the knowledge of the Company, any of their
respective affiliates (as such term is defined in Rule 405
under the Act) on the one hand, and any former or current director,
officer, stockholder, broker, customer or supplier of any of them,
on the other hand, which is required by the Act or the Exchange Act
or the rules and regulations thereunder to be described in the Form
10-K which is not so described or is not described as
required;
(jj) The Company and its consolidated
subsidiaries maintain a system of internal control over financial
reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange
Act and that is sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with
management’s authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements
in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management’s authorization;
(iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences; (v) material
information relating to the Company and its consolidated
subsidiaries is promptly made known to the officers responsible for
establishing and maintaining the system of internal accounting
controls; and (vi) any significant deficiencies or weaknesses
in the design or operation of internal accounting controls which
could adversely affect the Company’s ability to record,
process, summarize and report financial data, and any fraud whether
or not material that involves management or other employees who
have a significant role in internal controls, are adequately and
promptly disclosed to the Company’s independent auditors and
the audit committee of the Company’s board of directors; the
Company’s internal control over financial reporting is
effective in all material respects and the Company is not aware of
any material weaknesses in its internal control over financial
reporting;
(kk) The Company and its consolidated
subsidiaries employ disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) of the Exchange Act) that
comply in all material respects with the requirements of the
Exchange Act; such disclosure controls and procedures are designed
to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate
11
to allow timely decisions regarding disclosure; such disclosure
controls and procedures are effective to provide reasonable
assurance that information required to be disclosed by the Company
in reports filed or submitted by the Company under the Exchange Act
is recorded, processed, summarized and timely reported as specified
in the Commission’s rules and forms;
(ll) There are no transactions,
arrangements and other relationships between and/or among the
Company, Platinum Finance, and/or, to the knowledge of the Company,
any of their respective affiliates and any unconsolidated entity,
including, but not limited to, any structural finance, special
purpose or limited purpose entity (each, an “Off Balance
Sheet Transaction”) that could reasonably be expected to
affect materially the Company’s liquidity or the availability
of or requirements for its capital resources, including those Off
Balance Sheet Transactions described in the Commission’s
Statement about Management’s Discussion and Analysis of
Financial Conditions and Results of Operations (Release Nos.
33-8056; 34-45321; FR-61), required to be described in the Form
10-K which have not been described as required;
(mm) Neither the Company, Platinum
Finance, nor any person acting on its or their behalf has offered
or sold the Securities or the Guarantees by means of any general
solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Securities or the
Guarantees sold outside the United States to non-U.S. persons (as
defined in Rule 902 under the Act), by means of any directed
selling efforts within the meaning of Rule 902 under the
Securities Act and the Company, Platinum Finance, any of their
respective affiliates and any person acting on their behalf has
complied with and will implement the “offering
restriction” within the meaning of such Rule 902;
provided that no representation is made with respect to any action
or inaction of the Purchaser;
(nn) Within the preceding six months,
neither the Company, Platinum Finance nor any other person acting
on behalf of the Company or Platinum Finance has offered or sold to
any person any Securities or the Guarantees, or any securities of
the same or a similar class as the Securities or the Guarantees,
other than Securities or Guarantees offered or sold to the
Purchaser hereunder; provided that no representation is made with
respect to any action or inaction of the Purchaser. The Company and
Platinum Finance will take reasonable precautions designed to
insure that any offer or sale, direct or indirect, in the United
States or to any U.S. person (as defined in Rule 902 under the
Act) of any Securities or Guarantees or any substantially similar
security issued by the Company or Platinum Finance, within six
months subsequent to the date on which the distribution of the
Securities and the Guarantees has been completed (as notified to
the Company by the Purchaser), is made under restrictions and other
circumstances reasonably designed not to affect the status of the
offer and sale of the Securities and the Guarantees in the United
States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the
Act;
(oo) Since the date of the latest
audited financial statements included or incorporated by reference
in the Offering Circular, there has been no change in the
Company’s internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial
reporting;
12
(pp) Registration of the Securities
(and the Guarantees) under the Securities Act is not required in
connection with the offer, sale, issuance or delivery of the
Securities (and the Guarantees) to the Purchaser or by the
Purchaser in the initial resale thereof in the manner contemplated
by this Agreement and the Offering Circular; and
(qq) Except as described in the
Offering Circular, the Company has no knowledge of any threatened
or pending downgrading of the rating accorded the Company or any of
its subsidiaries’ financial strength or claims-paying ability
by A.M. Best Company, Inc., Standard & Poor’s Ratings
Service, a Division of The McGraw-Hill Companies, Inc., and
Moody’s Investors Services, Inc., the only “nationally
recognized statistical rating organizations,” as that term is
defined by the Commission for purposes of Rule 463(g)(2) under
the Act which currently rate the claims-paying ability or one or
more of the Company or its subsidiaries.
2. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell
to the Purchaser, and the Purchaser agrees to purchase from the
Company, at a purchase price of 98.76% of the principal amount
thereof, plus accrued interest, if any, from May 26, 2005 to
the Time of Delivery hereunder, all of the Securities (and the
Guarantees).
3. Upon the authorization by you
of the release of the Securities and the Guarantees, the Purchaser
proposes to offer the Securities (and the Guarantees) for sale upon
the terms and conditions set forth in this Agreement and the
Offering Circular and the Purchaser hereby represents and warrants
to, and agrees with the Company and Platinum Finance
that:
(a) It will offer and sell the
Securities only to (i) persons who it reasonably believes are
“qualified institutional buyers” (“QIBs”)
within the meaning of Rule 144A under the Act in transactions
meeting the requirements of Rule 144A or, (ii) upon the
terms and conditions set forth in Annex II to this
Agreement;
(b) It is an Institutional
Accredited Investor; and
(c) It will not offer or sell
the Securities (and the Guarantees) by any form of general
solicitation or general advertising, including but not limited to
the methods described in Rule 502(c) under the Act.
4. (a) The Securities (and
the Guarantees) to be purchased by the Purchaser hereunder will be
represented by one or more definitive global Securities which will
be deposited by or on behalf of Platinum Finance with The
Depository Trust Company (“DTC”) or its designated
custodian and will be registered in the name of Cede & Co., as
nominee of DTC. The Company and Platinum Finance will deliver the
Securities (and the Guarantees) to and for the account of the
Purchaser, against payment by or on behalf of the Purchaser of the
purchase price therefore by wire transfer in federal same day
funds. The Company and Platinum Finance will cause the certificates
representing the Securities (and the Guarantees) to be made
available to the Purchaser for checking at least twenty-four hours
prior to the Time of Delivery (as defined below) at the office of
DTC or its designated custodian. The time and date of such delivery
and payment shall be 9:30 a.m., New York City time, on May 26,
2005 or such other time and date as the Purchaser and the Company
may agree upon in writing. Such time and date for delivery of the
Securities (and the Guarantees) is herein called the “Time of
Delivery”.
13
(b) The documents to be
delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 7 hereof, including the cross
receipt for the Securities (and the Guarantees) and any additional
documents reasonably requested by the Purchaser pursuant to Section
7(k) hereof, will be delivered at the offices of Fried, Frank,
Harris, Shriver & Jacobson LLP, One New York Plaza, New York,
New York 10004 (the “Closing Location”), at the Time of
Delivery. A meeting will be held at the Closing Location at 2:00
p.m., New York City time, on the New York Business Day next
preceding the Time of Delivery, at which meeting the final drafts
of the documents to be delivered pursuant to the preceding sentence
will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business
Day” shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York
are generally authorized or obligated by law or executive order to
close.
5. Each of the Company and
Platinum Finance, jointly and severally, agrees with the
Purchaser:
(a) To prepare the Offering
Circular in a form approved by you; to make no amendment or any
supplement to the Offering Circular which shall be disapproved by
you promptly after reasonable notice thereof; and to furnish you
with copies thereof;
(b) Promptly from time to time
to take such action as you may reasonably request to qualify the
Securities and the Guarantees for offering and sale under the
securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities and the
Guarantees, provided that in connection therewith neither the
Company nor Platinum Finance shall be required to qualify as a
foreign corporation or to file a general consent to service of
process in any jurisdiction or become subject to taxation in any
jurisdiction;
(c) Prior to 10:00 A.M.,
New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the
Purchaser with written and electronic copies of the Offering
Circular and each amendment or supplement thereto signed by an
authorized officer of the Company with the independent
accountants’ report(s) in the Offering Circular, and any
amendment or supplement containing amendments to the financial
statements covered by such report(s), signed by the accountants, in
New York City in such quantities as you may reasonably request, and
if, at any time prior to the expiration of nine months after the
date of the Offering Circular, any event shall have occurred as a
result of which the Offering Circular as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made when such Offering Circular is delivered, not
misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the
Offering Circular, to notify you and upon your request to prepare
and furnish without charge to the Purchaser and to any dealer in
securities as many written and electronic copies as you may from
time to time reasonably request of an amended Offering Circular or
a supplement to the Offering Circular which will correct such
statement or omission or effect such compliance;
(d) During the period beginning
from the date hereof and continuing to and including the date
30 days after the date of the Offering Circular, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company or Platinum Finance that
are substantially similar to the Securities (and the Guarantees),
including but not limited to any
14
securities that are convertible into or exchangeable for, or that
represent the right to receive, any such substantially similar
securities, or to file any registration statement with the
Commission under the Act relating to any such securities (other
than a registration statement on Form S-4 providing for the
registration of the debt securities and guarantees of Platinum
Finance and the Company, respectively, with terms identical to the
Securities (and the Guarantees) (the “Exchange
Securities”), and the exchange of the Securities (and the
Guarantees) for the Exchange Securities, all in a manner which will
permit persons who acquire the Exchange Securities to resell the
Exchange Securities pursuant to the Act), without prior written
consent of the Purchaser;
(e) Not to be or become, at any
time prior to the expiration of three years after the Time of
Delivery, an open-end investment company, unit investment trust,
closed-end investment company or face-amount certificate company
that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company
is not subject to Section 13 or 15(d) of the Exchange Act, for
the benefit of holders from time to time of Securities and the
Guarantees, to furnish at its expense, upon request, to holders of
Securities and the Guarantees and prospective purchasers of
securities information (the “Additional Issuer
Information”) satisfying the requirements of subsection
(d)(4)(i) of Rule 144A under the Act;
(g) If requested by you, to use
its best efforts to cause the Securities and the Guarantees to be
eligible for the PORTAL trading system of the National Association
of Securities Dealers, Inc.;
(h) If not otherwise available
on the Commission’s Electronic Data Gathering, Analysis and
Retrieval System or similar system, during a period of five years
from the date of the Offering Circular, to furnish to the holders
of the Securities and the Guarantees as soon as practicable after
the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after
the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the date of the
Offering Circular), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable
detail, provided, however, that if the Company is subject to the
reporting requirements of the Exchange Act, the Company shall not
be required to provide such information prior to the time such
information is filed with the Commission;
(i) If not otherwise available
on the Commission’s Electronic Data Gathering, Analysis and
Retrieval System or similar system, during a period of five years
from the date of the Offering Circular, to furnish to you copies of
all reports or other communications (financial or other) furnished
to shareholders of the Company, and to deliver to you (i) as
soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
securities exchange on which the Securities or any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent
the accounts of the Company and its subsidiaries are consolidated
in reports furnished to its shareholders generally or to the
Commission), provided, however, that, if the Company is subject to
the reporting requirements of the Exchange Act, the Company shall
not be required to provide such information prior to the time such
information is filed with the Commission;
15
(j) During the period of three
years after the Time of Delivery, the Company and Platinum Finance
will not, and will not permit any of their respective
“affiliates” (as defined in Rule 144 under the
Act) to, resell any of the Securities or the Guarantees which
constitute “restricted securities” under Rule 144
that have been reacquired by any of them; and
(k) To use the net proceeds
received by it from the sale of the Securities and the Guarantees
pursuant to this Agreement in the manner specified in the Offering
Circular under the caption “Use of
Proceeds.”
6. Each of the Company and
Platinum Finance, without duplication, covenants and agrees with
the Purchaser that the Company and Platinum Finance will pay or
cause to be paid the following: (i) the fees, disbursements and
expenses of the Company’s and Platinum Finance’s
counsel and accountants in connection with the issue of the
Securities and the Guarantees and all other expenses in connection
with the preparation, printing and filing of the Preliminary
Offering Circular and the Offering Circular and any amendments and
supplements thereto and the mailing and delivering of copies
thereof to the Purchaser and dealers; (ii) the cost of
printing or producing this Agreement, the Jurisdiction Agreement,
the 2005 Registration Rights Agreement, the Indenture, the Blue Sky
Memorandum, closing documents (including any compilations thereof)
and any other documents in connection with the offering, purchase,
sale and delivery of the Securities and the Guarantees;
(iii) all expenses in connection with the qualification of the
Securities and the Guarantees for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Purchaser in
connection with such qualification and in connection with the Blue
Sky survey; (iv) any fees charged by securities rating
services for rating the Securities; (v) the reasonable fees
and expenses of the Trustee and any agent of the Trustee and the
reasonable fees and disbursements of its counsel in connection with
the Indenture, the Securities and the Guarantee; (vi) the cost
of preparing the Securities and the Guarantees; (vii) the cost
and charges of any transfer agent or registrar; and (viii) any
cost incurred in connection with the designation of the Securities
for trading in PORTAL; and (ix) all other costs and expenses
incident to the performance of its obligations hereunder which are
not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and
Sections 8 and 10 hereof, the Purchaser will pay all of their
own costs and expenses, including the fees of their counsel,
transfer taxes on resale of any of the Securities (and the
Guarantees) by them, and any advertising expenses connected with
any offers they may make.
7. The obligations of the
Purchaser hereunder shall be subject, in its discretion, to the
condition that all representations and warranties and other
statements of the Company and Platinum Finance herein are, at and
as of the Time of Delivery, true and correct, the condition that
each of the Company and Platinum Finance shall have performed all
of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) Fried, Frank, Harris,
Shriver & Jacobson LLP, counsel for the Purchaser, shall have
furnished to you such written opinion or opinions, dated the Time
of Delivery in a form or forms acceptable to you, and such counsel
shall have received such papers and information as they may
reasonably request to enable them to render such opinion or
opinions;
(b) Dewey Ballantine LLP,
counsel for the Company and Platinum Finance, shall have furnished
to you their written opinion or opinions (a draft of such opinion
or opinions are attached as
16
Annex II(a) hereto), dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) Assuming each of this Agreement,
the Jurisdiction Agreement, the 2005 Registration Rights Agreement
and the Indenture has been duly authorized, executed and delivered
by the Company under Bermuda law, each of this Agreement, the
Jurisdiction Agreement, the 2005 Registration Rights Agreement and
the Indenture has been duly delivered by the Company under New York
law, and each of the 2005 Registration Rights Agreement, when
executed and delivered by the Purchaser (and assuming it is binding
on the Purchaser), and the Indenture, when executed and delivered
by the Trustee (and assuming it is binding on the Trustee),
constitutes a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
to general equity principles (other than the indemnities provided
for in the 2005 Registration Rights Agreement, as to which no
opinion need be expressed).
(ii) Each of this Agreement, the
Jurisdiction Agreement, the 2005 Registration Rights Agreement and
the Indenture has been duly authorized, executed and delivered by
Platinum Finance, and each of the 2005 Registration Rights
Agreement, when executed and delivered by the Purchaser (and
assuming it is binding on the Purchaser), and the Indenture, when
executed and delivered by the Trustee (and assuming it is binding
on the Trustee), constitutes a valid and legally binding obligation
of Platinum Finance, enforceable against Platinum Finance in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles (other than the indemnities
provided for in the 2005 Registration Rights Agreement, as to which
no opinion need be expressed).
(iii) The Securities have been duly
executed by Platinum Finance, and, when authenticated by the
Trustee in accordance with the Indenture and delivered to the
Purchaser against payment therefor in accordance with
the
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