Exhibit 10.9
THIS AGREEMENT is made on *, 2002
BETWEEN:
(1) ST. XXXX REINSURANCE COMPANY LIMITED (registered number 01460363) of The
St. Xxxx Xxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx X0 0XX ("ST. XXXX RE UK");
and
(2) PLATINUM RE (UK) LIMITED (registered number 4413755) of The St. Xxxx
Xxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxxxxx X0 0XX ("PLATINUM RE UK"),
(each a "PARTY" and together the "PARTIES").
WHEREAS:
A. The St. Xxxx Companies, Inc. ("ST. XXXX") and Platinum Underwriters
Holdings, Ltd. ("PLATINUM HOLDINGS") entered into a Formation and
Separation Agreement dated * October, 2002 (as such agreement may be
amended from time to time) (the "FORMATION AGREEMENT") setting forth
certain terms governing St. Paul's sponsorship of the organisation of
Platinum Holdings and its subsidiaries, actions to be taken in respect of
Platinum Holdings' initial public offering (the "PUBLIC OFFERING") of its
common shares and the ongoing relationships between St. Xxxx and its
subsidiaries and Platinum Holdings and its subsidiaries after the
effective date of the Public Offering (the "CLOSING DATE").
B. Pursuant to the Formation Agreement, St. Xxxx and Platinum Holdings agreed
to procure (inter alia) that St. Xxxx Re UK and Platinum Re UK would enter
into an agreement (the "BUSINESS TRANSFER AGREEMENT") under which St. Xxxx
Re UK would transfer certain of the assets associated with its reinsurance
activities to Platinum Re UK.
C. Pursuant to the Formation Agreement, St. Xxxx and Platinum Holdings
further agreed to procure that St. Xxxx Re UK and Platinum Re UK would
enter into an agreement (the "UK RUN-OFF SERVICES AGREEMENT") relating to
the provision by Platinum Re UK to St. Xxxx Re UK for a specified period
of time after the Closing Date of certain services for, inter alia, the
administration of the run-off of (i) the reinsurance contracts which have
been written by St. Xxxx Re UK as reinsurer and which will not be renewed
following the Closing Date; (ii) the reinsurance contracts which have been
written, or which will be written or renewed, by St. Xxxx Re UK as
reinsurer and which will be one hundred per cent. (100%) reinsured by a
member of the Platinum group pursuant to one of the Quota Share
Retrocession Agreements (as defined in the Formation Agreement), and (iii)
the surplus lines insurance contracts which have been written by St. Xxxx
Re UK as primary insurer, ((i), (ii) and (iii) together, the "UK RUN-OFF
CONTRACTS").
D. The Parties have agreed that the provision of services hereunder shall be
conducted in a manner that is consistent with the regulatory requirements
to which the Parties are respectively subject.
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WHEREBY IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this agreement (including the recitals and the Schedules):
"XXXXX (UK)" has the meaning attributed to it in
sub-clause 11.3;
"AUTHORISATION" means the authorisation of Platinum Re
UK under Part IV of the Financial
Services and Markets Xxx 0000 to carry
on reinsurance business in the United
Kingdom;
"BUSINESS TRANSFER AGREEMENT" has the meaning attributed to it in
Recital B;
"CLOSING DATE" has the meaning attributed to it in
Recital A;
"EVENTS OF FORCE MAJEURE" has the meaning attributed to it in
sub-clause 8.2;
"FORMATION AGREEMENT" has the meaning attributed to it in
Recital A;
"LOSSES" means any and all losses, liabilities,
claims, damages, obligations, payments,
costs and expenses, matured or
unmatured, absolute or contingent,
accrued or unaccrued, liquidated or
unliquidated, known or unknown
(including, without limitation, the
costs and expenses of any Proceedings,
threatened Proceedings, demand,
assessment, judgment, settlement and
compromise relating thereto and legal
fees and any and all expenses
whatsoever reasonably incurred in
investigating, preparing or defending
against any such Proceedings or
threatened Proceedings);
"PLATINUM HOLDINGS" has the meaning attributed to it in
Recital A;
"PLATINUM UK INDEMNITEES" has the meaning attributed to it in
sub-clause 7.1;
"PROCEEDINGS" means any proceeding, suit, action,
claim, arbitration, subpoena,
discovery, request, inquiry or
investigation by or before any court,
any governmental or other regulatory or
administrative agency or commission or
any arbitral tribunal arising out of or
in connection with this agreement;
"PUBLIC OFFERING" has the meaning attributed to it in
Recital A;
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"ST. XXXX" has the meaning attributed to it in
Recital A;
"ST. XXXX CONFIDENTIAL has the meaning attributed to it in
INFORMATION" sub-clause 6.1;
"UK RUN-OFF CONTRACTS" has the meaning attributed to it in
Recital C;
"UK RUN-OFF SERVICES" has the meaning attributed to it in
sub-clause 3.1;
"UK RUN-OFF SERVICES AGREEMENT" means this agreement; and
"UK RUN-OFF SERVICES END DATE" has the meaning attributed to it in
sub-clause 3.4.
1.2 In this agreement, unless otherwise specified:
(A) references to clauses, sub-clauses and the Schedules are to clauses
and sub-clauses of, and the Schedules to, this agreement;
(B) headings to clauses and the Schedules are for convenience only and do
not affect the interpretation of this agreement;
(C) the Schedules form part of this agreement and shall have the same
force and effect as if expressly set out in the body of this
agreement and any reference to this agreement shall include the
Schedules;
(D) references to an "AFFILIATE" shall be construed so as to mean a
person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with, the person specified, where "CONTROL" means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management policies of a person, whether through
the ownership of voting securities, by contract, as trustee or
executor, or otherwise;
(E) references to a "COMPANY" shall be construed so as to include any
company, corporation or other body corporate, wherever and however
incorporated or established;
(F) references to a "PERSON" shall be construed so as to include any
individual, firm, company, trust, governmental, state or agency of a
state or any joint venture, association, partnership or other entity,
whether acting in an individual, fiduciary or other capacity (whether
or not having separate legal personality);
(G) the expressions "BODY CORPORATE" and "SUBSIDIARY" shall have the
meanings given in the Companies Xxx 0000, the Companies Consolidation
(Consequential
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Provisions) Xxx 0000, the Companies Xxx 0000 and Part V of the
Criminal Justice Xxx 0000;
(H) a reference to a statute or statutory provision shall include a
reference:
(i) to that statute or provision as from time to time
consolidated, modified, re-enacted or replaced by any statute
or statutory provision; and
(ii) to any subordinate legislation made under the relevant
statute;
(I) references to any English legal term for any action, remedy, method
of judicial proceeding, legal document, legal status, court, official
or any legal concept or thing shall in respect of any jurisdiction
other than England be deemed to include terms which most nearly
approximate in that jurisdiction to the English legal term;
(J) references to writing shall include any modes of reproducing words in
a legible and non-transitory form;
(K) references to the "REGULATOR" in relation to either Party means the
Financial Services Authority or any successor thereto; and
(L) references to the singular shall, where the context so admits,
include a reference to the plural and vice versa.
2. EFFECTIVE DATE
This agreement shall become effective on the Closing Date.
3. UK RUN-OFF SERVICES
3.1 Subject always to sub-clause 3.12, Platinum Re UK shall provide to St.
Xxxx Re UK from time to time after the Closing Date at the reasonable
request of St. Xxxx Re UK the services of senior personnel who are
reasonably acceptable to St. Xxxx Re UK and who have the expertise and
experience reasonably necessary to assist St. Xxxx Re UK in relation to
the administration of the UK Run-off Contracts by St. Xxxx Re UK, by
providing the services set out in the Schedule (as such may be amended
from time to time with the prior agreement of the Parties) (collectively,
the "UK RUN-OFF SERVICES").
3.2 Platinum Re UK shall provide each of the UK Run-off Services in such
manner as St. Xxxx Re UK may from time to time reasonably request for the
purposes of this agreement, provided that in no case shall Platinum Re UK
be required to provide any or all of the UK Run-off Services to a standard
which is materially higher than that to which the equivalent service is
generally provided by Platinum Re UK in respect of its other business.
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3.3 Platinum Re UK shall be responsible for obtaining and maintaining in full
force and effect any and all licences and authorisations necessary for the
lawful provision by it of any or all of the UK Run-off Services hereunder.
3.4 Platinum Re UK shall provide each of the UK Run-off Services for the
period up to and including the second anniversary of the date of this
agreement (the "UK RUN-OFF SERVICES END DATE"), provided that Platinum Re
UK shall consider in good faith any request by St. Xxxx Re UK for the
provision of some or all of the UK Run-off Services to be reasonably
extended beyond the UK Run-off Services End Date in the light of the
circumstances subsisting at the time such request is made. Platinum Re UK
and St. Xxxx Re UK shall agree upon the terms which will govern the
provision of the particular UK Run-off Services to be so provided at the
time St. Xxxx Re UK makes such request.
3.5 Platinum Re UK shall ensure that it does not breach any obligation owed by
it to the regulator and that it does not cause St. Xxxx Re UK to be in
breach of its obligations owed to the regulator through the provision of
the UK Run-off Services hereunder.
3.6 (A) In consideration for the provision to it of the UK Run-off Services,
St. Xxxx Re UK shall reimburse Platinum Re UK in respect of the
actual cost to Platinum Re UK, as certified in good faith by Platinum
Re UK, of providing the UK Run-off Services to St. Xxxx Re UK.
(B) For the purposes of sub-clause 3.6(A) above, the actual cost to
Platinum Re UK shall consist of its direct and reasonable indirect
costs and shall include any incremental and out-of-pocket costs
incurred by Platinum Re UK in connection with the UK Run-off
Services, including the conversion, acquisition and disposition cost
of software and equipment acquired for the purposes of providing the
UK Run-off Services and the cost of establishing requisite systems
and data feeds and hiring necessary personnel.
3.7 Each Party shall assign a services co-ordinator (as described in
sub-clause 3.8 below) and shall provide such other assistance as is
reasonably necessary to co-operate in determining the extent of the UK
Run-off Services to be provided hereunder.
3.8 (A) Each Party shall appoint a services co-ordinator with skills and
experience acceptable to the other Party who will:
(i) provide continuous oversight and co-ordination of the UK
Run-off Services;
(ii) communicate concerning disputes with respect to the UK Run-off
Services;
(iii) be available to the Parties during normal business hours; and
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(iv) be responsible for providing, or for delegating the provision
of, assistance regarding the UK Run-off Services.
(B) The services co-ordinators shall co-operate on a regular basis to
plan the delivery of the UK Run-off Services, including the timetable
for performance of the UK Run-off Services and the incurring of costs
in relation thereto.
(C) Either Party may from time to time substitute the individual serving
as its services co-ordinator with another individual qualified to
serve in that position.
3.9 (A) Upon the terms and subject to the conditions set out in this
agreement, each Party agrees to use its commercially reasonable
endeavours to take, or procure to be taken, all actions and to do, or
procure to be done, and to assist and co-operate with the other Party
in doing, all things necessary or advisable to effect the
transactions contemplated by this agreement.
(B) Platinum Re UK may place one or more of its employees on site at St.
Xxxx Re UK and St. Xxxx Re UK shall provide such Platinum Re UK
employee(s) with such facilities as are reasonably necessary to
administer the UK Run-off Contracts as contemplated in sub-clause 3.1
of and Schedule 1 to this agreement.
(C) Prior to providing them with access to its facilities, St. Xxxx Re UK
may review the qualifications and experience of the Platinum Re UK
employees which Platinum Re UK proposes should be located on site at
St. Xxxx Re UK.
(D) The facilities to be provided to the Platinum Re UK employees on site
shall include:
(i) the provision of such work space at the site where St. Xxxx Re
UK is servicing its reinsurance run-off operations as is
reasonably requested by Platinum Re UK, to the extent that
such work space is available to be provided to Platinum Re UK;
and
(ii) access to St. Xxxx Re UK's reinsurance and accounting systems
to the extent necessary and provided that St. Xxxx Re UK shall
not be required to provide such access to the extent that such
reinsurance and accounting systems relate to matters other
than the UK Run-off Contracts. Any such access shall be during
normal St. Xxxx Re UK working hours and shall not interfere
unreasonably with the normal operations of St. Xxxx Re UK.
(E) Platinum Re UK acknowledges that the Platinum Re UK employees who are
to have access to St. Xxxx Re UK's facilities and information under
these provisions are limited to using those facilities and that
information solely and exclusively for the purposes of providing
administration of the UK Run-off
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Contracts as contemplated by this agreement and fulfilling Platinum
Re UK's obligations under this agreement.
(F) Platinum Re UK undertakes to procure that the Platinum Re UK
employees in question shall not attempt to gain access to any
information relating to contracts other than the UK Run-off Contracts
and that any non-public information which is not related to the UK
Run-off Contracts shall be considered confidential and proprietary
and Platinum Re UK shall not, and shall procure that its employees
shall not, use such information for any purpose or disclose the
information to any third parties, except as required by applicable
law or governmental authority.
3.10 The Parties shall co-operate with each other and all relevant regulatory
authorities to satisfy any regulatory requirements applicable to either of
them by virtue of the provision of UK Run-off Services to St. Xxxx Re UK
hereunder.
3.11 St. Xxxx Re UK shall grant to Platinum Re UK a licence to use any service
xxxx or trade xxxx or any other intellectual property right necessary for
the provision of the UK Run-off Services by Platinum Re UK in accordance
with the provisions of this agreement.
3.12 Nothing in this agreement shall entitle or oblige Platinum Re UK to
provide any service to St. Xxxx Re UK to the extent that the provision of
such service would involve Platinum Re UK carrying on reinsurance business
in the United Kingdom unless and until Platinum Re UK has received
Authorisation.
4. AUDIT RIGHTS
4.1 Upon reasonable prior notice, each Party hereto shall have full access to
any books and records maintained by the other and its affiliates insofar
as reasonably necessary for the purposes of confirming amounts properly
payable hereunder or satisfying any duty imposed hereby or resulting
herefrom.
4.2 Each Party shall permit and co-operate with any inspection by the
regulator or appointee of the regulator in relation to the provision of
any of the UK Run-off Services hereunder.
4.3 As soon as reasonably practicable following any request (or, in the case
of access required by the regulator, whether with or without notice being
given by the regulator), access shall be provided to auditors, other
nominated inspectors of the requesting Party or the regulator or the
appointee of the regulator to relevant facilities where records are
maintained and provision shall be made for such auditors, other inspectors
or the regulator or the appointee of the regulator to receive such
assistance as they shall reasonably request in relation thereto.
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4.4 In particular, each Party shall make available to the other all
information, data and materials:
(A) reasonably requested by the other Party so as to enable it to
evaluate the appropriateness of any charges and expenses payable
hereunder; or
(B) requested by the regulator or the appointee of the regulator in
connection with any regulatory inspection.
4.5 The Parties acknowledge that an audit may be required for regulatory
purposes and shall maintain all relevant records in such manner and to
such standard as may reasonably be requested by either Party for the
purposes of compliance with any regulatory requirements.
5. BILLING AND TAXES
5.1 No later than thirty days following the last day of each calendar quarter,
Platinum Re UK shall provide to St. Xxxx Re UK a report containing an
itemised list of the UK Run-off Services provided to St. Xxxx Re UK during
such previous calendar quarter in such form as the Parties shall agree.
5.2 St. Xxxx Re UK shall promptly, and in any event within 30 days after
receipt of such report unless St. Xxxx Re UK is contesting in good faith
the amount set forth in the report, pay to Platinum Re UK by wire transfer
of immediately available funds all amounts payable in respect of the UK
Run-off Services as set forth in such report.
5.3 Each Party shall pay all taxes for which it is the primary obligor as a
result of the provision of UK Run-off Services under this agreement,
provided that St. Xxxx Re UK shall be solely responsible for, and shall
reimburse Platinum Re UK in respect of, any sales, gross receipts, value
added or transfer tax payable with respect to the provision of any UK
Run-off Service under this agreement (any such reimbursement obligation
being, for the avoidance of doubt, in addition to St. Xxxx Re UK's
obligation to pay for such UK Run-off Service).
6. CONFIDENTIALITY
6.1 Neither Platinum Re UK nor any of its directors, officers or agents may
disclose any information of a confidential nature received from St. Xxxx
Re UK or a member of St. Xxxx Re UK's group (the "ST. XXXX CONFIDENTIAL
INFORMATION").
6.2 St. Xxxx Confidential Information shall not include information which is
or becomes generally known on a non-confidential basis, provided that the
source of such information was not bound by a confidentiality agreement or
other obligation of confidentiality.
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6.3 If Platinum Re UK or any of its directors, officers or agents is legally
requested or otherwise required (whether or not the requirement has the
force of law) by any securities exchange or regulatory or governmental
body to which such party is subject or submits, wherever situated
(including (amongst other bodies) the Financial Services Authority, the
London Stock Exchange, The Panel on Takeovers and Mergers, the Securities
and Exchange Commission of the United States or the New York Stock
Exchange), to disclose any St. Xxxx Confidential Information, Platinum Re
UK shall provide St. Xxxx Re UK with prompt written notice of the request
or requirement, to permit St. Xxxx Re UK (if it so elects) to seek an
appropriate protective order preventing or limiting disclosure. If St.
Xxxx Re UK seeks such an order or takes other steps to avoid or limit such
disclosure, Platinum Re UK shall co-operate with St. Xxxx Re UK at St.
Xxxx Re UK's expense. If, in the absence of such protective order,
Platinum Re UK is compelled to disclose St. Xxxx Confidential Information,
Platinum Re UK may disclose such St. Xxxx Confidential Information without
liability hereunder.
7. INDEMNIFICATION
7.1 St. Xxxx Re UK shall indemnify and hold harmless, to the fullest extent
permitted by law, Platinum Re UK, its officers, directors and employees
("PLATINUM UK INDEMNITEES") from and against any and all Losses incurred
by any Platinum UK Indemnitee arising out of or based upon:
(A) any actions taken or omitted by any such Platinum UK Indemnitee at
the direction of St. Xxxx Re UK pursuant to this agreement; or
(B) any breach by St. Xxxx Re UK of any of the covenants it has given
under this agreement.
7.2 (A) Subject to sub-clause 7.2(B) below, Platinum Re UK shall indemnify
and hold harmless, to the fullest extent permitted by law, St. Xxxx
Re UK, its officers, directors and employees ("ST. XXXX RE UK
INDEMNITEES") from and against any and all Losses incurred by any St.
Xxxx Re UK Indemnitee arising out of or based upon:
(i) the negligence or wilful misconduct of any person providing UK
Run-off Services; or
(ii) any breach by Platinum Re UK of any of the covenants it has
given under this agreement
(B) Notwithstanding anything to the contrary in this agreement, the total
aggregate liability of Platinum Re UK in respect of indemnifiable
Losses pursuant to sub-clause 7.2(A) above shall not in any event
exceed the aggregate amount paid to Platinum Re UK by St. Xxxx Re UK
pursuant to sub-clause 3.6 above.
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7.3 Except with respect to claims relating to actual fraud, the remedies set
forth in this clause 7 shall be the sole and exclusive remedies of the
Parties in relation to any and all claims for indemnification under this
agreement.
8. FORCE MAJEURE
8.1 Neither Party shall be liable to the other for any total or partial
failure to comply with any of the terms or provisions of this agreement by
reason of an Event of Force Majeure, provided that the affected Party
shall take all reasonable steps to mitigate any such failure.
8.2 For the purposes of this clause 8, "EVENTS OF FORCE MAJEURE" shall mean
fires, floods, earthquakes, elements of nature or acts of God, acts of
war, terrorism, riots, civil disorders, rebellions or revolutions,
strikes, lock-outs or labour difficulties, power outages, equipment
failures, computer viruses or malicious acts of third parties and laws,
orders, proclamations, regulations, ordinances, demands or requirements of
governmental authorities.
9. DATA PROTECTION AND BUSINESS INFORMATION
9.1 During the term of this agreement, the Parties shall ensure that they
comply at all times with the provisions of the Data Protection Xxx 0000
and all related legislation, regulations and guidelines.
9.2 (A) Each Party shall ensure that to the extent that it holds information
which relates to the other Party's business it shall provide the
other Party with such access to that information as is reasonably
required for the other Party to carry on its business.
(B) For the avoidance of doubt, neither Party shall be required under
sub-clause 9.2(A) above to disclose any information which does not
relate to the other Party's business.
10. TERM AND TERMINATION
10.1 This agreement shall continue in full force and effect until all
obligations hereunder have been fulfilled, unless terminated sooner in
accordance with the provisions of sub-clause 10.2 below.
10.2 St. Xxxx Re UK may terminate any or all of the UK Run-off Services upon
sixty days' prior written notice at any time to Platinum Re UK.
11. ARBITRATION
11.1 All matters in difference between the Parties arising under, out of or in
connection with this agreement, including formation and validity, and
whether arising during or after the
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period of this agreement, may be referred by either Party to an
arbitration tribunal in the manner hereinafter set out.
11.2 Unless the Parties appoint a sole arbitrator within 14 days of one
receiving a written request from the other for arbitration, the claimant
(the Party requesting arbitration) shall appoint its arbitrator and give
written notice thereof to the respondent. Within 14 days of receiving such
notice the respondent shall appoint its arbitrator and give written notice
thereof to the claimant, failing which the claimant may apply to the
appointor hereafter named to nominate an arbitrator on behalf of the
respondent.
11.3 The appointor shall be the Chairman for the time being of the X.X.X.X.
Reinsurance and Insurance Arbitration Society of the UK ("XXXXX (UK)") or,
if he is unavailable or it is inappropriate for him to act for any reason,
such person as may be nominated by the Committee of XXXXX (UK).
11.4 Before they enter upon a reference the two arbitrators shall appoint a
third arbitrator. Should they fail to appoint such a third arbitrator
within 30 days of the appointment of the respondent's arbitrator then any
of them or either of the Parties concerned may apply to the appointor for
the appointment of the third arbitrator. The three arbitrators shall
decide by majority. If no majority can be reached the verdict of the third
arbitrator shall prevail. He shall also act as chairman of the tribunal.
11.5 Unless the parties otherwise agree the arbitration tribunal shall consist
of persons (including those who have retired) with not less than ten
years' experience of insurance or reinsurance as persons engaged in the
industry itself or as lawyers or other professional advisers.
11.6 The arbitration tribunal shall, so far as is permissible under the law and
practice of the place of arbitration, have power to fix all procedural
rules for the holding of the arbitration including discretionary power to
make orders as to any matters which it may consider proper in the
circumstances of the case with regard to pleadings, discovery, inspection
of the documents, examination of witnesses and any other matter whatsoever
relating to the conduct of the arbitration and may receive and act upon
such evidence whether oral or written, strictly admissible or not as it
shall in its discretion think fit.
11.7 All costs of the arbitration shall be determined by the arbitration
tribunal who may, taking into account the law and practice of the place of
arbitration, direct to and by whom and in what manner they shall be paid.
11.8 Unless the Parties otherwise agree, the place of arbitration shall be
London, England and, for the avoidance of doubt, the arbitration tribunal
shall apply English law.
11.9 The award of the arbitration tribunal shall be in writing and binding upon
the Parties who consent to carry out the same.
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12. MISCELLANEOUS
12.1 Neither Party may assign its rights under this agreement without the prior
written consent of the other. Subject to the foregoing, this agreement
shall be binding upon, inure to the benefit of and be enforceable by the
Parties and their respective successors and assigns.
12.2 This agreement and the Formation Agreement constitute the whole and only
agreement between the Parties in relation to the subject matter of this
agreement and, save to the extent repeated in this agreement and/or the
Formation Agreement, supersede any previous agreement between the Parties
with respect thereto.
12.3 This agreement may only be varied in writing signed by each of the
Parties.
12.4 (A) No failure or delay on the part of either Party in exercising a
right, power or remedy provided by this agreement or by law shall
operate as a waiver of that right, power or remedy or a waiver of any
other rights, powers or remedies.
(B) No single or partial exercise of a right, power or remedy provided by
this agreement or by law shall prevent further exercise of that
right, power or remedy or the exercise of another right, power or
remedy.
(C) Except as otherwise provided herein, the rights, powers and remedies
provided in this agreement shall be cumulative and not exclusive of
any rights, powers or remedies provided by law.
12.5 If any provision of this agreement or any part of any such provision is
held to be invalid, unlawful or unenforceable, such provision or part (as
the case may be) shall be ineffective only to the extent of such
invalidity, unlawfulness or unenforceability, without rendering invalid,
unlawful or unenforceable or otherwise prejudicing or affecting the
remainder of such provision or any other provision of this agreement.
12.6 The Parties hereto acknowledge that if any of the provisions of this
agreement were not to be performed in accordance with their specific terms
or were otherwise to be breached, irreparable damage would occur and
damages would not be an adequate remedy. In the event of any such breach,
the aggrieved Party shall be entitled, in addition to any other remedy at
law or in equity, to specific performance of the terms hereof and
immediate injunctive or other equitable relief, without the necessity of
proving the inadequacy of money damages as a remedy or of posting any bond
or other security.
12.7 The Parties do not intend that any term of this agreement shall be
enforceable, by virtue of the Contracts (Rights of Third Parties) Xxx
0000, by any person who is not a party to this agreement.
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12.8 Nothing in this agreement and no action taken by the Parties under this
agreement shall constitute a partnership, association, joint venture or
other co-operative entity between the Parties, nor are the terms of this
agreement intended to constitute the Parties a joint employer for any
purpose.
12.9 Following receipt by Platinum Re UK of the necessary Authorisation, each
of the Parties agrees that the provisions of this agreement as a whole
shall not constitute control of the other Party or provide it with the
ability to control such other Party, and each Party expressly disclaims
any right or power under this agreement to exercise any power whatsoever
over the management or policies of the other.
12.10 Nothing in this agreement shall oblige either Party to act in breach of
the requirements of any law, rule or regulation applicable to it,
including securities and insurance laws, written policy statements of
securities commissions, insurance and other regulatory authorities, and
the by-laws, rules, regulations and written policy statements of relevant
securities and self-regulatory organisations.
13. NOTICES
13.1 Any notice required or permitted to be given under this agreement shall be
given in writing to the other Party at its address set out below:
if to St. Xxxx Re UK, to:
St. Xxxx Reinsurance Company Limited
00, Xxxxxxxxxx Xxxxxx,
Xxxxxx, X0 0XX
Fax number: 000 0000 0000
marked for the attention of the Company Secretary
if to Platinum Re UK, to:
Platinum Re (UK) Limited
00, Xxxx Xxxxxx,
Xxxxxx, XX0X 0XX
Fax number: 000 0000 0000
marked for the attention of the Company Secretary
or to such other address or fax number, and marked for the attention of
such other person, as may from time to time be notified by the relevant
Party to the other Party.
13.2 Any such notice shall be sent by first class post or facsimile
transmission (copied by post) or delivered by hand and shall be deemed to
be served:
(A) in the case of post, on the second business day after posting;
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(B) in the case of facsimile transmission, upon successful transmission
(or, if the day of sending is not a business day in the place of
receipt, at the opening of business on the first business day in the
place of receipt thereafter); and
(C) in the case of delivery by hand, upon delivery (or, if the day of
delivery is not a business day in the place of receipt, at the
opening of business on the first business day in the place of receipt
thereafter).
14. GOVERNING LAW
This agreement shall be governed by and construed in accordance with
English law.
15. COUNTERPARTS
15.1 This agreement may be executed in any number of counterparts, and by the
Parties on separate counterparts, but shall not be effective until each
Party has executed at least one counterpart.
15.2 Each counterpart shall constitute an original of this agreement, but the
counterparts shall together constitute but one and the same instrument.
IN WITNESS of which each of the Parties has executed this agreement on the day
and year first above written.
200080/10230 CA021330043 GHXC 211002:1737
15
SCHEDULE
UK RUN-OFF SERVICES
- Claims management and handling services - in particular, St. Xxxx Re UK will
need access to Xxxxxxx Xxxxxxx and his assistance in relation to any legal
disputes relating to claims files previously handled by him, and access to
and assistance from underwriting personnel in relation to legal disputes;
- Contract writing services - in particular, St. Xxxx Re UK will need access
to contract wording services and underwriting expertise extending to contact
and negotiating with brokers and clients on underwriting questions;
- Actuarial reserving expertise - in particular through access to Xxxxxx Xxxx
- Credit control, tax and accounting expertise - in particular through access
to various individuals including (without limitation) Xxx Xxxxxx;
- General systems expertise from various individuals including access to all
information technology personnel;
- Consulting services from Xxxxxx Xxxxxxx;
- Access to and assistance from Xxxxxx Xxxxxxx, Xxx Xxxxxx and Xxxxxx Xxxx in
relation to general St. Xxxx Re UK business issues previously handled by
them;
- Access to other individuals also in the event of a UK audit; and
- Incidental services.
[THIS SCHEDULE SHOULD IDENTIFY THE SENIOR PERSONNEL WHO WILL PROVIDE THE UK
RUN-OFF SERVICES AND THEIR AVAILABILITY FOR PROVISION OF THE UK RUN-OFF
SERVICES]
[SINCE THIS AGREEMENT COVERS THE SERVICING OF THE REINSURED CONTRACTS,
SUPERVISORY SERVICES MAY BE NEEDED FROM PLATINUM RE UK TO ST. XXXX RE UK FOR
LONGER THAN IS CURRENTLY PROVIDED HEREUNDER. XXX XXXXXXXXX TO CONFIRM WHAT HAS
BEEN AGREED IN THIS REGARD.]
200080/10230 CA021330043 GHXC 211002:1737
16
SIGNED by )
for and on behalf of ST. XXXX )
REINSURANCE COMPANY )
LIMITED )
SIGNED by )
for and on behalf of PLATINUM )
RE (UK) LIMITED )
200080/10230 CA021330043 GHXC 211002:1737
DATED * , 2002
ST. XXXX REINSURANCE COMPANY LIMITED
AND
PLATINUM RE (UK) LIMITED
----------------------------------------
UK RUN-OFF SERVICES AGREEMENT
----------------------------------------
XXXXXXXXX AND MAY
XXX XXXXXXX XXX
XXXXXX
XX0X 0XX
(GWJ/GHXC)
CA021330043
CONTENTS
PAGE
1. Interpretation 2
2. Effective Date 4
3. UK Run-off Services 4
4. Audit Rights 7
5. Billing and Taxes 8
6. Confidentiality 8
7. Indemnification 9
8. Force Majeure 10
9. Data Protection and Business Information 10
10. Term and Termination 10
11. Arbitration 10
12. Miscellaneous 12
13. Notices 13
14. Governing Law 14
15. Counterparts 14
Schedule UK Run-off Services 15