EXHIBIT 10.9
DATED - , 2002
ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED
AND
PLATINUM RE (UK) LIMITED
----------------------------------------
FORM OF UK RUN-OFF SERVICES AGREEMENT
----------------------------------------
▇▇▇▇▇▇▇▇▇ AND MAY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
(GWJ/GHXC)
CONTENTS
PAGE
1. Interpretation 4
2. Effective Date 6
3. UK Run-off Services 6
4. Audit Rights 9
5. Billing and Taxes 9
6. Confidentiality 10
7. Indemnification 10
8. Force Majeure 11
9. Data Protection and Business Information 11
10. Term and Termination 12
11. Arbitration 12
12. Miscellaneous 13
13. Notices 14
14. Governing Law and Jurisdiction 15
15. Counterparts 15
Schedule UK Run-off Services
THIS AGREEMENT is made on -, 2002
BETWEEN:
(1) ST. ▇▇▇▇ REINSURANCE COMPANY LIMITED (registered number 01460363) of The
St. ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("ST. ▇▇▇▇ RE UK");
and
(2) PLATINUM RE (UK) LIMITED (registered number 4413755) of The St. ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ("PLATINUM RE UK"),
(each a "PARTY" and together the "PARTIES").
WHEREAS:
A. The St. ▇▇▇▇ Companies, Inc. ("INC.") and Platinum Underwriters Holdings,
Ltd. ("PLATINUM HOLDINGS") entered into a Formation and Separation
Agreement dated - June, 2002 (as such agreement may be amended from time
to time) (the "FORMATION AGREEMENT") setting forth certain terms
governing Inc.'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 Inc. 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, Inc. and Platinum Holdings agreed to
procure (inter alia) that St. ▇▇▇▇ Re UK and Platinum Re UK would enter
into an agreement (the "BUSINESS TRANSFER AGREEMENT") under which St.
▇▇▇▇ Re UK would transfer certain of the assets associated with its
reinsurance activities to Platinum Re UK.
C. Pursuant to the Formation Agreement, Inc. and Platinum Holdings further
agreed to procure that St. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ Re UK as reinsurer and which have not been
reinsured by Platinum Re UK or US F&G Family Insurance Company; and (ii)
the surplus lines insurance contracts which have been written by St. ▇▇▇▇
Re UK as primary insurer, (together, the "UK RUN-OFF CONTRACTS").
D. The respective businesses of St. ▇▇▇▇ Re UK and Platinum Re UK are
regulated activities and 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.
WHEREBY IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this agreement (including the recitals and the Schedules):
"▇▇▇▇▇ (UK)" has the meaning attributed to it
in sub-clause 11.3;
"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;
"INC." 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;
"ST. ▇▇▇▇ CONFIDENTIAL INFORMATION" has the meaning attributed to it
in 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 3.5.
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 ▇▇▇ ▇▇▇▇, the Companies
Consolidation (Consequential Provisions) ▇▇▇ ▇▇▇▇, the Companies ▇▇▇
▇▇▇▇ and Part V of the Criminal Justice ▇▇▇ ▇▇▇▇;
(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 Platinum Re UK shall provide to St. ▇▇▇▇ Re UK from time to time after
the Closing Date at the reasonable request of St. ▇▇▇▇ Re UK the services
of senior personnel who are reasonably acceptable to St. ▇▇▇▇ Re UK and
who have the expertise and experience reasonably necessary to oversee the
administration of the UK Run-off Contracts by St. ▇▇▇▇ Re UK, including
the services set out in the Schedule (as such may be amended from time to
time) (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. ▇▇▇▇ 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.
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. ▇▇▇▇ 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.
▇▇▇▇ 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. ▇▇▇▇
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. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ 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
(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.
▇▇▇▇ Re UK and St. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ Re UK's reinsurance and accounting systems
to the extent necessary and provided that St. ▇▇▇▇ 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. ▇▇▇▇ Re UK working hours and shall not interfere
unreasonably with the normal operations of St. ▇▇▇▇ Re UK.
(E) Platinum Re UK acknowledges that the Platinum Re UK employees who
are to have access to St. ▇▇▇▇ 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 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 Platinum Re UK shall co-operate with St. ▇▇▇▇ Re UK and all relevant
regulatory authorities to satisfy any regulatory requirements applicable
to Platinum Re UK by virtue of its provision of UK Run-off Services to
St. ▇▇▇▇ Re UK hereunder.
3.11 St. ▇▇▇▇ Re UK shall grant to Platinum Re UK a licence to use any service
▇▇▇▇ or trade ▇▇▇▇ 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.
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.
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. ▇▇▇▇ Re UK a report
containing an itemised list of the UK Run-off Services provided to St.
▇▇▇▇ Re UK during such previous calendar quarter in such form as the
Parties shall agree.
5.2 St. ▇▇▇▇ Re UK shall promptly, and in any event within 30 days after
receipt of such report unless St. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇ 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. ▇▇▇▇
Re UK or a member of St. ▇▇▇▇ Re UK's group (the "ST. ▇▇▇▇ CONFIDENTIAL
INFORMATION").
6.2 St. ▇▇▇▇ 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.
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. ▇▇▇▇ Confidential Information, Platinum Re
UK shall provide St. ▇▇▇▇ Re UK with prompt written notice of the request
or requirement, to permit St. ▇▇▇▇ Re UK (if it so elects) to seek an
appropriate protective order preventing or limiting disclosure. If St.
▇▇▇▇ Re UK seeks such an order or takes other steps to avoid or limit
such disclosure, Platinum Re UK shall co-operate with St. ▇▇▇▇ Re UK at
St. ▇▇▇▇ Re UK's expense. If, in the absence of such protective order,
Platinum Re UK is compelled to disclose St. ▇▇▇▇ Confidential
Information, Platinum Re UK may disclose such St. ▇▇▇▇ Confidential
Information without liability hereunder.
7. INDEMNIFICATION
7.1 St. ▇▇▇▇ 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. ▇▇▇▇ Re UK pursuant to this agreement; or
(B) any breach by St. ▇▇▇▇ 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. ▇▇▇▇
Re UK, its officers, directors and employees ("ST. ▇▇▇▇ RE UK
INDEMNITEES") from and against any and all Losses incurred by any
St. ▇▇▇▇ 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. ▇▇▇▇ Re UK pursuant to sub-clause 3.7 above.
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 ▇▇▇ ▇▇▇▇
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. ▇▇▇▇ Re UK may terminate [any or all of] the UK Run-off Services upon
[thirty] days' prior written notice at any time to Platinum Re UK.
11. ARBITRATION
11.1 Subject to clause 11.10, 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 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 ▇.▇.▇.▇.
Reinsurance and Insurance Arbitration Society of the UK ("▇▇▇▇▇ (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 ▇▇▇▇▇ (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.
11.10 If any matter in difference between the Parties is related to a matter of
difference in the United States of America, such matter will be subject
to the arbitration procedure set out in Article XIV of the 100 per cent.
Quota Share Retrocession Agreement [of even date] between St. ▇▇▇▇ Fire
and Marine Insurance Company and Platinum Underwriters Reinsurance, Inc.,
provided that the panel of arbitrators shall apply English law in respect
of those aspects of the matter which relate to the United Kingdom.
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) ▇▇▇
▇▇▇▇, by any person who is not a party to this agreement.
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.
12.9 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. ▇▇▇▇ Re UK, to:
St. ▇▇▇▇ Reinsurance Company Limited
[ADDRESS]
Fax number: -
marked for the attention of the [Company Secretary]
if to Platinum Re UK, to:
Platinum Re (UK) Limited
[ADDRESS]
Fax number: -
marked for the attention of the [Company Secretary]
Copy to:
[ANYONE?]
Fax number: -
marked for the attention of -
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;
(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 AND JURISDICTION
14.1 This agreement shall be governed by and construed in accordance with
English law.
14.2 The courts in England are to have jurisdiction to settle any dispute
arising out of or in connection with this agreement. Any Proceedings
arising out of or in connection with this agreement may therefore be
brought in the English courts.
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.
SIGNED by )
for and on behalf of ST. ▇▇▇▇ )
REINSURANCE COMPANY )
LIMITED )
SIGNED by )
for and on behalf of PLATINUM )
RE (UK) LIMITED )
