EXHIBIT 10.3
COMMUTATION AND RELEASE AGREEMENT
THIS COMMUTATION AND RELEASE AGREEMENT ("Agreement") dated as of June
11, 2003, is made by and between Platinum Underwriters Reinsurance, Inc., a
Maryland domiciled stock insurance company ("Retrocessionaire") and Mountain
Ridge Insurance Company ("Retrocedant"), a Vermont domiciled insurance company.
RECITALS
WHEREAS, Retrocessionaire and Retrocedant are parties to the 100% Quota
Share Retrocession Agreement (Non-Traditional D-2), effective November 1, 2002
(the "Contract"), a copy of the Contract is attached hereto.
WHEREAS, Retrocessionaire and Retrocedant desire fully and finally to
settle and commute all their respective rights, obligations and liabilities,
known and unknown, under the Contract,
NOW THEREFORE, in consideration of the covenants set forth herein, the
Retrocessionaire and Retrocedant agree as follows:
ARTICLE 1 - RELEASE
(a) Retrocedant hereby releases and discharges Retrocessionaire and its
predecessors, successors, assigns, parents, affiliates, subsidiaries,
and each of their agents, officers, directors and shareholders from any
and all present and future payment obligations, including but not
limited to adjustments, expenses, duties, costs, executions, offsets,
actions, causes of action, suits, debts, bonds, bills, covenants,
promises, damages, judgments, claims, demands, liabilities and/or
losses whatsoever, all whether known or unknown, reported or
unreported, that Retrocedant and its predecessors, successors, assigns,
parents, affiliates, subsidiaries, and each of their agents, officers,
directors and shareholders ever had, now have or hereafter may have,
whether grounded in law or equity, in contract or in tort, by reason of
any matter whatsoever arising out of the Contract; and
(b) Concurrently with Retrocedant's release and discharge of
Retrocessionaire pursuant to paragraph 1(a), Retrocessionaire hereby
releases and discharges Retrocedant and its predecessors, successors,
assigns, parents, affiliates, subsidiaries, and each of their agents,
officers, directors and shareholders from any and all present and
future payment obligations, including but not limited to adjustments,
expenses, duties, costs, executions, offsets, actions, causes of
action, suits, debts, bonds, bills, covenants, promises, damages,
judgments, claims, demands, liabilities and/or losses whatsoever, all
whether known or unknown, reported or unreported, that Retrocessionaire
and its predecessors, successors,
assigns, parents, affiliates, subsidiaries, and each of their agents,
officers, directors, and shareholders ever had, now have or hereafter
may have, whether grounded in law or equity, in contract or in tort, by
reason of any matter whatsoever arising out of the Contract.
ARTICLE 2 - CONFIDENTIALITY
It is hereby agreed that the parties, including, but not limited to, their
respective attorneys, agents, accountants, representatives and affiliates, will
not disclose the terms and/or existence of this Agreement to any third parties
without the prior written consent of the other party with the exception of (i)
any Retrocessionaire that may be affected by this Agreement or (ii) any
intermediary that participates in this transaction and/or participated in the
Contract. Notwithstanding the foregoing, the terms or existence of this
Agreement may be disclosed as required (i) in any proceeding, arbitration,
lawsuit or other action involving the parties hereto or (ii) under the
compulsion of legal process or regulatory requirement.
ARTICLE 3 - ARBITRATION
As a condition precedent to any action to enforce any right hereunder, any
dispute between Retrocessionaire and Retrocedant arising out of or relating to
this Agreement and/or its formation shall be submitted to arbitration in
accordance with the arbitration provisions of the Contract.
ARTICLE 4 - MISCELLANEOUS
(a) This Agreement shall inure to the benefit of and be binding upon any
and all respective successors, liquidators, receivers, rehabilitators,
trustees and assigns of Retrocessionaire and Retrocedant.
(b) Retrocessionaire and Retrocedant each expressly warrant and represent
that it is a corporation in good standing in its respective place of
domicile; that it has had the opportunity to consult attorneys of its
own choosing in connection with the evaluation, negotiation and
execution of this Agreement; that the execution of this Agreement is
fully authorized by each of them; that the person or persons executing
this Agreement has necessary and appropriate authority to do so; that
there are no pending agreements, transactions or negotiations to which
either of them are a party that would render this Agreement or any part
thereof void, voidable or unenforceable; and that no authorization,
consent or approval of any government entity is required to make this
Agreement valid and binding upon them.
(c) Retrocessionaire and Retrocedant each expressly covenant and represent
that they may have claims against each other of which they are
presently unaware and agree that this Agreement is intended to and does
extend to all claims each may have against the other,
whether known or unknown, arising from the Contract.
(d) This Agreement may be executed and delivered in multiple counterparts,
each of which, when so executed and delivered shall be an original, but
such counterparts shall together constitute one and the same instrument
and Agreement.
(e) This Agreement contains the entire Agreement between Retrocessionaire
and Retrocedant as respects its subject matter. All discussions and
Agreements previously entertained between Retrocessionaire and
Retrocedant concerning the subject matter of the Agreement are merged
into this Agreement. This Agreement may not be modified or amended, nor
any of its provisions waived, except by an instrument in writing,
signed by the parties hereunder. No such written waiver of any
provision of this Agreement shall be deemed a waiver of any of its
other terms, unless explicitly stated therein.
(f) This Agreement shall be interpreted under and governed by the
substantive laws of New York without regard to any conflict of laws
rules.
(g) Retrocessionaire and Retrocedant each expressly covenant and represent
that they may have claims against each other of which they are
presently unaware and agree that this Agreement is intended to and does
extend to all claims each may have against the other, whether known or
unknown, arising from the Contract.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the date first above
written.
PLATINUM UNDERWRITERS REINSURANCE, INC.
By: /s/ Man-gyu Hur
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Name: Man-gyu Hur
Title: Vice President
MOUNTAIN RIDGE INSURANCE COMPANY
By: /s/ W. Xxxx Xxxxxxx
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Name: W. Xxxx Xxxxxxx
Title: President
