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merely contemplates the possibility that creditors may assign their direct claims to the

Trust. The only creditor claims that are automatically vested in the Litigation Trust are in

fact not creditor claims at all. They are “derivative creditor and shareholder claims”

brought on behalf of Trenwick America. That the Litigation Trust’s reading is incorrect

also is evidenced by certain provisions of the Litigation Trust Agreement, which include

an express assignment of Trenwick America’s pre-petition claims to the Litigation Trust,

but not the claims of Trenwick America’s creditors.

Section 3.2.3 of the Litigation Trust Agreement also provides that the Managing

Trustee for the Trust is authorized to “accept the assignment or transfer of claims, rights,

suits, judgments, causes of action . . . from the holders thereof . . . .”61 That is, the

Litigation Trust Agreement putatively gives the Trust the ability to pursue claims not

belonging to Trenwick America where there was an express assignment of claims. In this

case, the only express assignment of claims in section 1.4 of the Litigation Trust

Agreement. That section reads:

Assignment and Assumption of Liabilities: In accordance with Sections 1.2 and 1.3 hereof, [Trenwick America and Trenwick America’s successor] hereby transfers and assigns, and the Managing Trustee on behalf of the Litigation Trust, hereby assumes and agrees that all Litigation Trust Claims

to the Litigation Trust subject to any liabilities provided for in the Plan.62

Thus, under section 1.4, only the pre-petition claims of Trenwick America (i.e., Trenwick

America’s derivative claims) were expressly assigned to the Litigation Trust. No other

61 62

Litigation Trust Agreement § 3.2.3. at § 1.4 (emphasis added).


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