Exhibit 10.37
100% QUOTA SHARE RETROCESSION AGREEMENT
(TRADITIONAL)
BY AND BETWEEN
ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED
(RETROCEDANT)
and
PLATINUM RE (UK) LIMITED
(RETROCESSIONAIRE)
DATED AS OF________, 2002
THIS QUOTA SHARE RETROCESSION Agreement (this "AGREEMENT"), effective as of
12:01 a.m. London time on the day following receipt by Retrocessionaire of
permission from the Financial Services Authority under Part IV of the Financial
Services and Markets ▇▇▇ ▇▇▇▇ to conduct reinsurance business in the United
Kingdom (such time the "EFFECTIVE TIME" and such date the "EFFECTIVE DATE") is
made by and between ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED, a United Kingdom
domiciled insurance company ("RETROCEDANT"), and Platinum RE (UK) LIMITED, a
United Kingdom domiciled insurance company ("RETROCESSIONAIRE").
All capitalised terms used but not defined herein shall have the meanings
ascribed to such terms in the Formation and Separation Agreement dated --
between Platinum Underwriters Holdings, Ltd., the ultimate parent of
Retrocessionaire, and The St. ▇▇▇▇ Companies, Inc., the ultimate parent of
Retrocedant.
WHEREAS, Retrocedant has agreed to retrocede to Retrocessionaire, and
Retrocessionaire has agreed to assume by indemnity reinsurance, a one hundred
percent (100%) quota share of the liabilities arising pursuant to the
Reinsurance Contracts (as defined hereunder), subject to the terms set forth
herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises and upon
the terms and conditions set forth herein, the parties hereto agree as follows.
BUSINESS COVERED; EXCLUSIONS
Retrocedant hereby obligates itself to retrocede to Retrocessionaire
and Retrocessionaire hereby obligates itself to accept, pursuant to the
terms of this Agreement, a one hundred percent (100%) quota share of
any and all liabilities incurred by Retrocedant under all reinsurance
and retrocession contracts (each, a "REINSURANCE CONTRACT") that are
[new or] renewal contracts entered into by Retrocedant on or after the
Effective Date pursuant to [Clause 4.1 or] Clause 4.3 of Part B of the
UK Underwriting Agency and Underwriting Management Agreement (the
"AGENCY AGREEMENT") between Retrocedant and Retrocessionaire of even
date herewith. No retrocession shall attach with respect to any
contracts of reinsurance of any kind or type whatsoever issued and/or
assumed by Retrocedant, other than the Reinsurance Contracts.
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TERM
This Agreement shall be continuous as to the Reinsurance Contracts.
Except as mutually agreed in writing by the Retrocedant and the
Retrocessionaire, this Agreement shall remain continuously in force
until all Reinsurance Contracts are terminated, expired, cancelled or
commuted.
COVERAGE
The Coverage Period will be the period from and including the Effective
Time through the commutation, expiration or final settlement of all
liabilities under any of the Reinsurance Contracts.
PREMIUMS AND COMMISSION
As premium for the reinsurance provided hereunder, Retrocedant shall
retrocede to Retrocessionaire one hundred percent (100%) of the gross
premium ceded to Retrocedant under the Reinsurance Contracts, less
return premium, applicable [ceding and other] commissions, allowances
and premiums for inuring reinsurance.
ORIGINAL CONDITIONS
All retrocessions assumed under this Agreement shall be subject to the
same rates, terms, conditions, waivers and interpretations, and to the
same modifications and alterations, as the respective Reinsurance
Contracts.
INURING RETROCESSIONS
It is understood and agreed that when Retrocedant warrants that it is
in the best interest of Retrocedant and Retrocessionaire, Retrocedant
may purchase facultative reinsurance and any other treaty reinsurance.
The premium for said inuring reinsurance that inures to the benefit of
Retrocessionaire will be deducted from the premium hereunder.
LOSS AND LOSS EXPENSE; SALVAGE AND SUBROGATION; FOLLOW THE FORTUNES
Retrocessionaire shall be liable for one hundred percent (100%) of all
future loss, loss adjustment expenses, incurred but not reported losses
and other payment obligations as incurred by Retrocedant under the
Reinsurance Contracts on and after the Effective Date. Retrocessionaire
shall have the right to all salvage and subrogation on the account of
claims and settlements with respect to the Reinsurance Contracts.
In the event of a claim under a Reinsurance Contract, Retrocedant will
assess the validity of the claim and make a determination as to
payment, consistent with the claims handling guidelines previously
provided to Retrocedant in writing by Retrocessionaire and
Retrocessionaire may exercise its rights under the Administration
subsection in respect thereof. Retrocedant shall provide prompt notice
of any claim in excess of $500,000 to Retrocessionaire. All payments
made by Retrocedant, whether under strict contract terms or by way of
compromise, shall be binding on Retrocessionaire. In addition, if
Retrocedant refuses to pay a claim in full and a legal proceeding
results, Retrocessionaire will be unconditionally bound by any
settlement agreed to by Retrocedant or the adverse judgment of any
court or arbitrator (which could include any judgment for bad faith,
punitive damages, excess policy limit losses or extra contractual
obligations) and Retrocedant may recover with respect to such
settlements and judgments under this Agreement. Though Retrocedant will
settle such claims and litigation in good faith, Retrocessionaire is
bound to accept the settlements paid by Retrocedant and such
settlements may be
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for amounts that could be greater than the amounts that would be agreed
to by Retrocessionaire if Retrocessionaire were to settle such claims
or litigation directly. It is the intent of this Agreement that
Retrocessionaire shall in every case in which this Agreement applies
and in the proportion specified herein, "follow the fortunes" of
Retrocedant in respect of risks Retrocessionaire has accepted under
this Agreement.
EXTRA CONTRACTUAL OBLIGATIONS
In the event Retrocedant or Retrocessionaire is held liable to pay any
punitive, exemplary, compensatory or consequential damages because of
alleged or actual bad faith or negligence related to the handling of
any claim under any Reinsurance Contract or otherwise in respect of
such Reinsurance Contract, the parties shall be liable for such damages
in proportion to their responsibility for the conduct giving rise to
the damages. Such determination shall be made by Retrocedant and
Retrocessionaire, acting jointly and in good faith, and in the event
the parties are unable to reach agreement as to such determination,
recourse shall be had to the Arbitration Section hereof.
ADMINISTRATION OF REINSURANCE CONTRACTS
ADMINISTRATION
The parties agree that, as of the Effective Time, Retrocedant shall
have the sole authority to administer the Reinsurance Contracts in all
respects, which authority shall include, but not be limited to,
authority to ▇▇▇▇ for and collect premiums, adjust all claims and
handle all disputes thereunder and to effect any and all amendments,
commutations and cancellations of the Reinsurance Contracts, subject,
however, in the case of administration of claims, to all claims
handling guidelines provided in advance in writing by Retrocessionaire
to Retrocedant. Retrocedant shall not, on its own, settle any claim,
waive any right, defence, setoff or counterclaim relating to the
Reinsurance Contracts with respect to amounts in excess of $500,000 or
make any ex gratia payments, and shall not amend, commute or terminate
any of the Reinsurance Contracts, in each case without the prior
written consent of Retrocessionaire.
Notwithstanding the foregoing, to the extent permitted by law,
Retrocessionaire may, at its discretion and at its own expense, assume
the administration, defence and settlement of any claim upon prior
written notice to Retrocedant. Upon receipt of such notice, Retrocedant
shall not compromise, discharge or settle such claim except with the
prior written consent of Retrocessionaire. Retrocessionaire shall not
take any action in the administration of such claim that would
reasonably be expected to adversely affect Retrocedant, its business or
its reputation, without the prior written consent of Retrocedant.
Subject to the terms of the Extra Contractual Obligations section
hereof, Retrocessionaire shall indemnify Retrocedant for all Losses,
including punitive, exemplary, compensatory or consequential damages
arising from such assumption of the conduct of such settlement pursuant
to the Indemnification section herein.
REPORTING AND REGULATORY MATTERS
Each party shall provide the notices and filings required to be made by
it to relevant regulatory authorities as a result of this Agreement.
Notwithstanding the foregoing, each party shall provide to the other
party any information in its possession regarding the Reinsurance
Contracts as reasonably required by the other party to make such
filings and in a form as agreed to by the parties.
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DUTY TO COOPERATE
Upon the terms and subject to the conditions and other agreements set
forth herein, each party agrees to use its commercially reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause
to be done, and to assist and cooperate with the other party in doing,
all things necessary or advisable to perform the transactions
contemplated by this Agreement.
COMMUNICATIONS RELATING TO THE REINSURANCE CONTRACTS
Following the Effective Time, Retrocedant and Retrocessionaire shall
each promptly forward to the other copies of all material notices and
other written communications it receives relating to the Reinsurance
Contracts (including, without limitation, all inquiries and complaints
from relevant insurance regulators, brokers and other service providers
and reinsureds and all notices of claims, suits and actions for which
it receives service of process.)
REPORTS AND REMITTANCES
REPORT FROM RETROCEDANT
Within 30 days after the close of each month, Retrocedant will furnish
Retrocessionaire with a report summarising the written premium ceded
less return premium, allowances, commission, premiums for inuring
reinsurance, losses paid, loss adjustment expense paid, monies
recovered, and net balance due either party. In addition, Retrocedant
will furnish Retrocessionaire a monthly statement showing the unearned
premium, the total reserves for outstanding losses including loss
adjustment expense, a breakdown for paid and outstanding catastrophe
losses and loss adjustment expense, and such other information as may
be required by Retrocessionaire for completion of its annual statements
or other filings.
REMITTANCES
Within two Business Days after delivery of each monthly report pursuant
to the Report subsection of this Section, Retrocedant and
Retrocessionaire shall settle all amounts then due under this Agreement
for that month.
LATE PAYMENTS
Should any payment due any party to this Agreement be received by such
party after the due date for such payment under this Agreement,
interest shall accrue from the date on which such payment was due until
payment is received by the party entitled thereto, at an annual rate
equal to the London Interbank Offered Rate quoted for six month periods
as reported in The Wall Street Journal on the first Business Day of the
month in which such payment first becomes due plus one hundred basis
points (the "APPLICABLE RATE").
COST REIMBURSEMENT
Retrocessionaire shall reimburse for its allocated share of all costs
and expenses incurred by Retrocedant in administering the Reinsurance
Contracts as set forth in Exhibit A hereto.
CURRENCY
For purposes of this Agreement, where Retrocedant receives premiums or
pays losses in currencies other than United States dollars, such
premiums or losses shall
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be converted into United States dollars at the actual rates of exchange
at which these premiums or losses are entered in the Retrocedant's
books.
MAINTENANCE OF LICENSES
Each of Retrocedant and Retrocessionaire hereby covenants to maintain
at all times all licences and authorisations required to undertake the
actions contemplated hereby.
ACCESS TO RECORDS
From and after the Effective Date, Retrocedant shall afford to
Retrocessionaire and its respective authorized accountants, counsel and
other designated representatives (collectively, "Representatives")
reasonable access (including using commercially reasonable best efforts
to give access to Persons possessing information) during normal
business hours to all data and information that is specifically
described in writing (collectively, "Information") within the
possession of Retrocedant relating to the liabilities transferred
hereunder, insofar as such information is reasonably required by
Retrocessionaire. Similarly, from and after the Effective Date,
Retrocessionaire shall afford to Retrocedant, any Post-closing
Subsidiary of Retrocedant and their respective Representatives
reasonable access (including using commercially reasonable best efforts
to give access to Persons possessing information) during normal
business hours to Information within Retrocessionaire's possession
relating to Retrocedant, insofar as such information is reasonably
required by Retrocedant. Information may be requested under this
Section for, without limitation, audit, accounting, claims, litigation
(other than any claims or litigation between the parties hereto) and
tax purposes, as well as for purposes of fulfilling disclosure and
reporting obligations and for performing this Agreement and the
transactions contemplated hereby.
From and after the Effective Date, Retrocessionaire and Retrocedant or
their designated representatives may inspect, at the place where such
records are located, any and all data and information that is
specifically described in writing within the possession of the other
party hereto reasonably relating to this Agreement, on reasonable prior
notice and during normal business hours. The rights of the parties
under this Section shall survive termination of this Agreement and
shall continue for as long as there may be liabilities under the
Reinsurance Contracts or reporting or retention requirements under
applicable law. In addition, each party shall have the right to take
copies (including electronic copies) of any information held by the
other party that reasonably relates to this Agreement or the
Reinsurance Contracts. Each party shall, and shall cause its designated
representatives to, treat and hold as confidential information any
information it receives or obtains pursuant to this Section.
INDEMNIFICATION
INDEMNIFICATION BY RETROCEDANT
Retrocedant agrees to indemnify, defend and hold harmless
Retrocessionaire, and its officers, directors and employees with
respect to any and all Losses arising from any breach by Retrocedant of
any representation, warranty or covenant herein. Retrocedant further
agrees to indemnify, defend and hold harmless Retrocessionaire and its
officers, directors and employees against any and all Losses arising
out of Retrocedant's administration of the Reinsurance Contracts,
including but not limited to extracontractual obligations, payments in
excess of policy limits and settlements made in respect of any such
claims to the extent arising from the gross negligence or wilful
misconduct of Retrocedant except to the extent such actions are taken
with the prior consent or direction of Retrocessionaire. Such
indemnification obligations shall
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be limited to the aggregate of all fees paid to Retrocedant pursuant to
the Cost Reimbursement subsection hereof.
INDEMNIFICATION BY RETROCESSIONAIRE
Retrocessionaire agrees to indemnify, defend and hold harmless
Retrocedant, and its officers, directors and employees with respect to
any and all Losses arising from any breach by Retrocessionaire of any
representation, warranty or covenant herein. Retrocessionaire further
agrees to indemnify, defend and hold harmless Retrocedant and its
officers, directors and employees against any and all Losses arising
out of Retrocessionaire's administration of the Reinsurance Contracts,
including but not limited to extracontractual obligations, payments in
excess of policy limits and settlements made in respect of any such
claims.
INDEMNIFICATION PROCEDURES
(a) If a party seeking indemnification pursuant to this Section
(each, an "INDEMNITEE") receives notice or otherwise learns of
the assertion by a Person (including, without limitation, any
governmental entity) who is not a party to this Agreement or
an Affiliate thereof, of any claim or of the commencement by
any such Person of any Action (a "THIRD PARTY CLAIM") with
respect to which the party from whom indemnification is sought
(each, an "INDEMNIFYING PARTY") may be obligated to provide
indemnification pursuant to the Indemnification by Retrocedant
and the Indemnification by Retrocessionaire subsections of
this Section, such Indemnitee shall give such Indemnifying
Party written notice thereof promptly after becoming aware of
such Third Party Claim; PROVIDED that the failure of any
Indemnitee to give notice as provided in this Section shall
not relieve the Indemnifying Party of its obligations under
this Section, except to the extent that such Indemnifying
Party is prejudiced by such failure to give notice. Such
notice shall describe the Third Party Claim in as much detail
as is reasonably possible and, if ascertainable, shall
indicate the amount (estimated if necessary) of the Loss that
has been or may be sustained by such Indemnitee.
(b) An Indemnifying Party may elect to defend or to seek to settle
or compromise, at such Indemnifying Party's own expense and by
such Indemnifying Party's own counsel, any Third Party Claim.
Within 30 days of the receipt of notice from an Indemnitee in
accordance with subsection (a) of this Section (or sooner, if
the nature of such Third Party Claim so requires), the
Indemnifying Party shall notify the Indemnitee of its election
whether the Indemnifying Party will assume responsibility for
defending such Third Party Claim, which election shall specify
any reservations or exceptions. After notice from an
Indemnifying Party to an Indemnitee of its election to assume
the defence of a Third Party Claim, such Indemnifying Party
shall not be liable to such Indemnitee under this Section for
any legal or other expenses (except expenses approved in
writing in advance by the Indemnifying Party) subsequently
incurred by such Indemnitee in connection with the defence
thereof; PROVIDED that, if the defendants in -------- any such
claim include both the Indemnifying Party and one or more
Indemnitees and in any Indemnitee's reasonable judgment a
conflict of interest between one or more of such Indemnitees
and such Indemnifying Party exists in respect of such claim or
if the Indemnifying Party shall have assumed responsibility
for such claim with reservations or exceptions that would
materially prejudice such Indemnitees, such Indemnitees shall
have the right to employ separate counsel to represent such
Indemnitees and in that event the reasonable fees and expenses
of such separate counsel (but not more than one separate
counsel for all such Indemnitees reasonably satisfactory to
the Indemnifying Party) shall be paid by such Indemnifying
Party. If an Indemnifying Party elects not
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to assume responsibility for defending a Third Party Claim, or
fails to notify an Indemnitee of its election as provided in
this Section, such Indemnitee may defend or (subject to the
remainder of this Section) seek to compromise or settle such
Third Party Claim at the expense of the Indemnifying Party.
(c) Neither an Indemnifying Party nor an Indemnitee shall consent
to entry of any judgment or enter into any settlement of any
Third Party Claim which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such
Indemnitee, in the case of a consent or settlement by an
Indemnifying Party, or the Indemnifying Party, in the case of
a consent or settlement by the Indemnitee, of a written
release from all liability in respect to such Third Party
Claim.
(d) If an Indemnifying Party chooses to defend or to seek to
compromise or settle any Third Party Claim, the Indemnitee
shall make available at reasonable times to such Indemnifying
Party any personnel or any books, records or other documents
within its control or which it otherwise has the ability to
make available that are necessary or appropriate for such
defence, settlement or compromise, and shall otherwise
cooperate in a reasonable manner in the defence, settlement or
compromise of such Third Party Claim.
(e) Notwithstanding anything in this Section to the contrary,
neither an Indemnifying Party nor an Indemnitee may settle or
compromise any claim over the objection of the other; PROVIDED
that consent to settlement or compromise shall not be
unreasonably withheld or delayed. If an Indemnifying Party
notifies the Indemnitee in writing of such Indemnifying
Party's desire to settle or compromise a Third Party Claim on
the basis set forth in such notice (provided that such
settlement or compromise includes as an unconditional term
thereof the giving by the claimant or plaintiff of a written
release of the Indemnitee from all liability in respect
thereof) and the Indemnitee shall notify the Indemnifying
Party in writing that such Indemnitee declines to accept any
such settlement or compromise, such Indemnitee may continue to
contest such Third Party Claim, free of any participation by
such Indemnifying Party, at such Indemnitee's sole expense. In
such event, the obligation of such Indemnifying Party to such
Indemnitee with respect to such Third Party Claim shall be
equal to (i) the costs and expenses of such Indemnitee prior
to the date such Indemnifying Party notifies such Indemnitee
of the offer to settle or compromise (to the extent such costs
and expenses are otherwise indemnifiable hereunder) PLUS (ii)
the lesser of (A) the amount of any offer of settlement or
compromise which such Indemnitee declined to accept and (B)
the actual out-of-pocket amount such Indemnitee is obligated
to pay subsequent to such date as a result of such
Indemnitee's continuing to pursue such Third Party Claim.
(f) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third Party Claim, such
Indemnifying Party shall be subrogated to and shall stand in
the place of such Indemnitee as to any events or circumstances
in respect of which such Indemnitee may have any right or
claim relating to such Third Party Claim against any claimant
or plaintiff asserting such Third Party Claim or against any
other Person. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and
expense of such Indemnifying Party, in prosecuting any
subrogated right or claim.
(g) Except with respect to claims relating to actual fraud, the
indemnification provisions set forth in this section are the
sole and exclusive remedy of the parties hereto for any and
all claims for indemnification under this Agreement.
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SURVIVAL
This Indemnification Section shall survive termination of this
Agreement.
ARBITRATION
All disputes and differences arising under or in connection with this
Agreement shall be referred to arbitration under the Arbitration Rules
of the ▇.▇.▇.▇. Reinsurance and Insurance Arbitration Society of the UK
("▇▇▇▇▇ (UK)").
The Arbitration Tribunal shall consist of three arbitrators, one to be
appointed by the claimant party, one to be appointed by the respondent
party and the third to be appointed by the two appointed arbitrators.
The third member of the Tribunal shall be appointed as soon as
practicable (and no later than 28 days) after the appointment of the
two party-appointed arbitrators. The Tribunal shall be constituted upon
the appointment of the third arbitrator.
The Arbitrators shall be persons (including those who have retired)
with not less than ten years' experience of insurance or reinsurance
within the industry or as lawyers or other professional advisers
serving the industry.
Where a party fails to appoint an arbitrator within 14 days of being
called upon to do so or where the two party-appointed arbitrators fail
to appoint a third within 28 days of their appointment, then upon
application ▇▇▇▇▇ (UK) will appoint an arbitrator to fill the vacancy.
At any time prior to appointment by ▇▇▇▇▇ (UK) the party or arbitrators
in default may make such appointment.
The Tribunal may in its sole discretion make such orders and directions
as it considers to be necessary for the final determination of the
matters in dispute. The Tribunal shall have the widest discretion
permitted under the law governing the arbitral procedure when making
such orders or directions.
The seat of arbitration shall be London.
Each party shall bear the expense of its own arbitrator and shall share
equally with the other party the expense of the third arbitrator and of
the arbitration.
This Arbitration section shall survive termination of this Agreement.
INSOLVENCY
In the event of the insolvency of Retrocedant, this reinsurance shall
be payable directly to Retrocedant, or to its liquidator, receiver,
conservator or statutory successor on the basis of the liability of
Retrocedant without diminution because of the insolvency of Retrocedant
or because the liquidator, receiver, conservator or statutory successor
of Retrocedant has failed to pay all or a portion of any claim.
It is agreed, however, that the liquidator, receiver, conservator or
statutory successor of Retrocedant shall give written notice to the
Retrocessionaire of the pendency of a claim against Retrocedant
indicating the Reinsurance Contract, which claim would involve a
possible liability on the part of Retrocessionaire within a reasonable
time after such claim is filed in the conservation or liquidation
proceeding or in the receivership, and that during the pendency of such
claim, Retrocessionaire may investigate such claim and interpose, at
its own expense, in the proceeding where such claim is to be
adjudicated any defence or defences that it may deem available to
Retrocedant or its liquidator, receiver, conservator or statutory
successor. The expense thus incurred by Retrocessionaire shall be
chargeable, subject to the
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approval of the court, against Retrocedant as part of the expense of
conservation or liquidation to the extent of a pro rata share of the
benefit which may accrue to Retrocedant solely as a result of the
defence undertaken by Retrocessionaire.
As to all reinsurance made, ceded, renewed or otherwise becoming
effective under this Agreement, the reinsurance shall be payable as set
forth above by Retrocessionaire to Retrocedant or to its liquidator,
receiver, conservator or statutory successor, except (i) where the
Reinsurance Contracts specifically provide another payee in the event
of the insolvency of Retrocedant, and (ii) where Retrocessionaire, with
the consent of the reinsured or reinsureds under the Reinsurance
Contracts, has assumed such Reinsurance Contract obligations of
Retrocedant as direct obligations of Retrocessionaire to the payees
under such Reinsurance Contracts and in substitution for the
obligations of the Retrocedant to such payees.
For the purposes of this Section, "insolvency of Retrocedant" shall
occur if:
(i) a winding up petition is presented in respect of Retrocedant
or a provisional liquidator is appointed over it or if
Retrocedant goes into administration, administrative
receivership or receivership or if Retrocedant has a scheme of
arrangement or voluntary arrangement proposed in relation to
all or any part of its affairs; or
(ii) Retrocedant goes into compulsory or voluntary liquidation;
or, in each case, if Retrocedant becomes subject to any other similar
insolvency process (whether under the laws of England and Wales or
elsewhere); and
Retrocedant is unable to pay its debts as and when they fall due within
the meaning of section 123 of the Insolvency ▇▇▇ ▇▇▇▇ (or any statutory
amendment or re-enactment of that section).
OFFSET
Retrocedant and Retrocessionaire shall have the right to offset any
balance or amounts due from one party to the other under the terms of
this Agreement. The party asserting the right of offset may exercise
such right at any time whether the balances due are on account of
premiums, losses or otherwise.
ERRORS AND OMISSIONS
Any inadvertent delay, omission, error or failure shall not relieve
either party hereto from any liability which would attach hereunder if
such delay, omission, error or failure had not been made, provided such
delay, omission, error or failure is rectified as soon as reasonably
practicable upon discovery.
SECURITY
As a condition precedent to this Agreement becoming effective,
Retrocessionaire shall execute:
(i) the custody and investment accounting agreement with State
Street Bank and Trust Company ("CUSTODIAN") in the form agreed
by Retrocedant and Retrocessionaire and initialled for the
purposes of identification by or on behalf of them ("THE
AGREED FORM") (the "CUSTODY AGREEMENT");
(ii) the control agreement between Retrocedant, Retrocessionaire
and Custodian in the Agreed Form (the "CONTROL AGREEMENT");
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(iii) the discretionary investment advisory agreement with Alliance
Capital Management L.P. ("INVESTMENT MANAGER") in the Agreed
Form (the "INVESTMENT ADVISORY AGREEMENT"); and
(iv) the security agreement, pursuant to which Retrocessionaire
grants a continuing first priority security interest in
collateral accounts established with Custodian pursuant to the
Custody Agreement, in the Agreed Form (the "SECURITY
AGREEMENT").
Retrocessionaire undertakes to notify Retrocedant in writing
immediately upon becoming aware of the occurrence of a Relevant Event
under the Security Agreement. [Upon becoming aware of any such
Relevant] Event, Retrocedant shall be entitled, upon notice in writing
to Retrocessionaire, to terminate this Agreement with immediate effect.
Upon termination, Retrocessionaire shall [within seven days] account to
Retrocedant for all amounts owing to Retrocedant pursuant to this
Agreement, and the provisions of the Offset Section shall apply. ]
MISCELLANEOUS PROVISIONS
SEVERABILITY
If any term or provision of this Agreement shall be held void, illegal,
or unenforceable, the validity of the remaining portions or provisions
shall not be affected thereby.
SUCCESSORS AND ASSIGNS
This Agreement may not be assigned by either party without the prior
written consent of the other. The provisions of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns as permitted
herein.
EQUITABLE RELIEF
Each party hereto acknowledges that if it or its employees or agents
violate the terms of this Agreement, the other party will not have an
adequate remedy at law. In the event of such a violation, the other
party shall have the right, in addition to any other rights that may be
available to it, to obtain in any court of competent jurisdiction
injunctive relief to restrain any such violation and to compel specific
performance of the provisions of this Agreement. The seeking or
obtaining of such injunctive relief shall not foreclose or limit in any
way relief against either party hereto for any monetary damage arising
out of such violation.
EXECUTION IN COUNTERPARTS
This Agreement may be executed by the parties hereto in any number of
counterparts and by each of the parties hereto in separate
counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
NOTICES
All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered by hand (with receipt confirmed), or by facsimile
(with transmission confirmed), or by certified mail, postage prepaid
and return receipt requested, addressed as follows (or to such other
address as a party may designate by written notice to the others) and
shall be deemed given on the date on which such notice is received:
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If to Retrocedant:
St. ▇▇▇▇ Reinsurance Company Limited
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇ ▇▇▇
Facsimile: + 44 20 7488 6345
Attention: Company Secretary
If to Retrocessionaire:
Platinum Re (UK) Limited
▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
Facsimile: 020 7623 6610
Attention: Company Secretary
WIRE TRANSFER
All settlements in accordance with this Agreement shall be made by wire
transfer of immediately available funds on the due date, or if such day
is not a Business Day, on the next day which is a Business Day,
pursuant to the following wire transfer instructions:
For credit to Platinum Re (UK) Limited
[ ]
Account Number [ ]
For credit to St. ▇▇▇▇ Reinsurance Company Limited [ ]
Payment may be made by cheque payable in immediately available funds in
the event the party entitled to receive payment has failed to provide
wire transfer instructions.
HEADINGS
Headings used herein are not a part of this Agreement and shall not
affect the terms hereof.
FURTHER ASSURANCES
Each of the parties shall from time to time, on being reasonably
requested to do so by the other party to this Agreement, do such acts
and/or execute such documents in a form reasonably satisfactory to the
party concerned as may be necessary to give full effect to this
Agreement and securing to that party the full benefit of the rights,
powers and remedies conferred upon it by this Agreement.
THIRD PARTY RIGHTS
The Indemnification Section of this Agreement confers a benefit on the
officers, directors and employees of Retrocedant and of
Retrocessionaire (the "THIRD PARTIES") and, subject to the remaining
provisions of this Section, is intended to be enforceable by the Third
Parties by virtue of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇.
The parties to this Agreement do not intend that any term of this
Agreement, apart from the Indemnification Section, should be
enforceable, by virtue of the Contracts
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(Rights of Third Parties) ▇▇▇ ▇▇▇▇, by any person who is not a party to
this Agreement.
Notwithstanding the foregoing provisions of this Third Party Rights
Section, this Agreement may be rescinded or varied in any way and at
any time by the parties to this Agreement without the consent of any or
all of the Third Parties.
AMENDMENTS; ENTIRE AGREEMENT
This Agreement may be amended only by written agreement of the parties.
This Agreement[, together with --,] supersedes all prior discussions
and written and oral agreements and constitutes the sole and entire
agreement between the parties with respect to the subject matter
hereof.
GOVERNING LAW
This Agreement shall be governed by English law.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorised representatives as of the date first
above written.
ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED
By
------------------------------------
Name:
Title:
PLATINUM RE (UK) LIMITED
By
------------------------------------
Name:
Title:
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EXHIBIT A
ALLOCATION OF ADMINISTRATIVE EXPENSES
Retrocessionaire shall pay to Retrocedant the "actual cost" to Retrocedant
(which shall consist of Retrocedant's direct and reasonable indirect costs), as
certified in good faith by Retrocedant. For greater certainty, the parties agree
that "actual cost" will include any incremental and out-of-pocket costs incurred
by Retrocedant in connection with the administrative services provided
hereunder, including the conversion, acquisition and disposition cost of
software and equipment acquired for the purposes of providing the services and
the cost of establishing requisite systems and data feeds and hiring necessary
personnel.
No later than 30 days following the last day of each calendar quarter,
Retrocedant shall provide Retrocessionaire with a report setting forth an
itemised list of the services provided to Retrocessionaire during such last
calendar quarter, in a form agreed to by the parties. Retrocessionaire shall
promptly (and in no event later than 30 days after receipt of such report,
unless Retrocessionaire is contesting the amount set forth in the report in good
faith) pay to Retrocedant by wire transfer of immediately available funds all
amounts payable as set forth in such report. Each party will pay all taxes for
which it is the primary obligor as a result of the provision of any service
under this Agreement; provided, that Retrocessionaire shall be solely
responsible for, and shall reimburse Retrocedant in respect of, any sales, gross
receipts, value added or transfer tax payable with respect to the provision of
any service under this Agreement, and any such reimbursement obligation shall be
in addition to Retrocessionaire's obligation to pay for such service.
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