COMMUTATION AND SETTLEMENT AGREEMENT (hereinafter referred to as this “Agreement”)
Exhibit 10.48
COMMUTATION AND SETTLEMENT AGREEMENT
(hereinafter referred to as this “Agreement”)
This Agreement is entered into by and between ACE Capital Re International, Ltd. (hereinafter referred to as the “Company”) and ACE Bermuda Insurance Ltd. (hereinafter referred to as the “Reinsurer”) and made effective 11:59:59 p.m. Local Standard Time, December 31, 2003 (the “Commutation Date”).
WHEREAS, the Company and Reinsurer are parties to the Per Contract Excess of Loss Reinsurance Agreement for the term incepting December 31, 2001 and originally terminating December 31, 2026 (hereinafter referred to as the “Contract”), which is attached hereto and made part of this Agreement; and
WHEREAS, the Company and Reinsurer desire to fully and finally settle and commute all obligations and liabilities, known and unknown, of the Company and the Reinsurer under the Contract.
NOW, THEREFORE, for good and valuable consideration the receipt of which is hereby acknowledged, IT IS AGREED BY AND BETWEEN THE REINSURER AND THE COMPANY THAT:
1. As consideration for the following release, the Reinsurer shall pay the Company the Commutation Amount no later than January 31, 2004, subject to the Reinsurer’s receipt of an original copy of this Agreement, having been fully executed by the parties hereto.
The “Commutation Amount” shall equal the sum of the Principal and Return, as defined below:
“Principal” shall equal One hundred thirty one million, nine hundred thirty seven thousand, two hundred eighty five United States dollars ($131,937,285);
“Return” shall equal: [Principal] x [Xxxxxx Intermediate Rate]; and
“Xxxxxx Intermediate Rate” shall mean the year-to-date total return of the Xxxxxx Brothers U.S. Intermediate Aggregate Bond Index, determined for the period January 1, 2004 through the date of transfer by the Reinsurer of the payment of the Commutation Amount.
2. Subject to the execution of this Agreement by the parties hereto and payment by the Reinsurer of the Commutation amount as required pursuant to paragraph 1 above, as of the Commutation Date, the Company releases and discharges the Reinsurer and its predecessors, successors, parent, subsidiaries, affiliates, assigns, agents, employees, officers, directors and shareholders (collectively, the “Reinsurer’s Related Parties”) from any and all present and future obligations, claims, demands, liabilities and/or losses whatsoever, all whether known or unknown, reported or unreported, and whether currently existing or arising in the future, including, but not limited to, all claims (including but not limited to those claims for which notices have been submitted to the Reinsurer), obligations, offsets, debts, demands, actions, causes of action, suits, duties, sums of money, covenants, contracts, controversies, agreements, reckonings, bonds, bills, promises, doings, omissions, damages, liability for payment of interest, judgments, costs,
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Agreement may not be modified or amended, or any of its provisions waived, except by an instrument in writing, signed by the parties hereunder.
7. Any dispute, controversy or claim arising out of or relating to this Agreement shall be subject to arbitration in accordance with the provisions of section 13, Arbitration, of the General Conditions of the Contract.
8. This Agreement shall be governed and construed in accordance with the laws of Bermuda, notwithstanding the venue of any arbitration proceeding.
9. This Agreement is solely between the Company and the Reinsurer, and nothing herein shall in any manner create any obligations or establish any rights against the Reinsurer in favor of any third parties or any persons not parties to this Agreement.
10. This Agreement may be executed and delivered in counterparts, each of which, when so executed and delivered shall constitute an original and all of such counterparts shall together constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the following individuals authorized to act on behalf of the parties:
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For and on Behalf of: |
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For and on Behalf of: |
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ACE BERMUDA INSURANCE LTD. |
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ACE CAPITAL RE INTERNATIONAL, |
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in Xxxxxxxx, Bermuda |
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in Xxxxxxxx, Bermuda |
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/s/ Xxxxxx Xxxxxx |
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/s/ Xxxxx Xxxxx |
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Name: Xxxxxx Xxxxxx |
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Name: Xxxxx Xxxxx |
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Title: President Ace Financial Solutions International |
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Title: Vice President |
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Date: 1/7/04 |
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Date: January 6, 2004 |
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