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INSURANCE MANAGEMENT AGREEMENT
among
MAX RE MANAGERS LTD.
MAX RE CAPITAL LTD.
BAYERISCHE HYPO- UND VEREINSBANK AG
and
GRAND CENTRAL RE LIMITED
Dated as of May 10, 2001
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TABLE OF CONTENTS
ARTICLE I - DEFINITIONS AND INTERPRETATION........................................................................1
Section 1.1 Definitions.................................................................................1
Section 1.2 Other Definition and Interpretation Provisions..............................................4
ARTICLE II - APPOINTMENT AS MANAGER; ANNUAL BUSINESS PLAN; PERFORMANCE STANDARDS; BOARD SUPERVISION; DELEGATION...4
Section 2.1 Appointment as Manager......................................................................4
Section 2.2 Annual Business Plan........................................................................7
Section 2.3 Performance Standards.......................................................................8
Section 2.4 Board Supervision...........................................................................8
Section 2.5 Delegation of Authority.....................................................................8
Section 2.6 Intention of the Parties....................................................................9
ARTICLE III - REPRESENTATIONS, WARRANTIES AND COVENANTS...........................................................9
Section 3.1 Representations of the Manager..............................................................9
Section 3.2 Representations of the Company.............................................................10
Section 3.3 Section 3.3 Covenants of the Manager.......................................................10
Section 3.4 Section 3.4 Covenants of the Company.......................................................11
ARTICLE IV - BOOKS AND RECORDS...................................................................................11
Section 4.1 Books and Records..........................................................................11
Section 4.2 Company Property...........................................................................12
ARTICLE V - MANAGER COMPENSATION.................................................................................12
Section 5.1 In General.................................................................................12
Section 5.2 Flat Fee...................................................................................12
Section 5.3 Reserve-based Fee..........................................................................12
Section 5.4 Fee for HVB Introduced Business............................................................13
Section 5.5 Fee Refund.................................................................................13
Section 5.6 Services Covered by Fees...................................................................13
Section 5.7 Additional Direct Expenses Payable by the Company..........................................14
ARTICLE VI - ACCESS TO EMPLOYEES; EXAMINATION; AUDIT.............................................................14
Section 6.1 Access to Employees and Books and Records..................................................14
Section 6.2 Examination................................................................................14
Section 6.3 Audit......................................................................................14
ARTICLE VII - INDEMNIFICATION AND INSURANCE......................................................................14
Section 7.1 Indemnification by Max Re Parent and the Manager...........................................14
Section 7.2 Indemnification by the Company.............................................................15
Section 7.3 Indemnification by HVB.....................................................................15
Section 7.4 Indemnification Procedures.................................................................16
Section 7.5 Insurance Requirements.....................................................................17
Section 7.6 Certificates of Insurance..................................................................18
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ARTICLE VIII - TERM AND TERMINATION..............................................................................18
Section 8.1 Term.......................................................................................18
Section 8.2 Termination On Notice......................................................................18
Section 8.3 Termination by the Company For Cause.......................................................18
Section 8.4 Termination by the Manager For Cause.......................................................19
Section 8.5 Performance During Period of Notice........................................................19
Section 8.6 No Prejudice...............................................................................20
ARTICLE IX - TRANSFER OF EXISTING COMPANY BUSINESS...............................................................20
Section 9.1 In General.................................................................................20
Section 9.2 Max Re Right to Bid........................................................................20
ARTICLE X - EFFECT OF TERMINATION................................................................................20
Section 10.1 Fees.......................................................................................20
Section 10.2 Return of Books and Records................................................................20
Section 10.3 Survival...................................................................................21
ARTICLE XI - CONFIDENTIALITY.....................................................................................21
Section 11.1 In General.................................................................................21
Section 11.2 Exceptions.................................................................................21
ARTICLE XII - ARBITRATION........................................................................................22
Section 12.1 Arbitration................................................................................22
Section 12.2 Arbitrators................................................................................22
Section 12.3 Qualification of Arbitrators...............................................................22
Section 12.4 Procedure..................................................................................23
Section 12.5 Arbitration Award..........................................................................23
Section 12.6 Consolidated Proceedings...................................................................23
ARTICLE XIII - GENERAL...........................................................................................23
Section 13.1 Relationship of the Parties................................................................23
Section 13.2 Notices....................................................................................23
Section 13.3 Governing Law..............................................................................26
Section 13.4 No Waiver..................................................................................26
Section 13.5 Offset.....................................................................................26
Section 13.6 Counterparts...............................................................................26
Section 13.7 Severability...............................................................................26
Section 13.8 Assignment and Third Party Beneficiaries...................................................26
Section 13.9 Integration: Amendment: Reliance...........................................................26
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INSURANCE MANAGEMENT AGREEMENT, dated as of May 10, 2001 between MAX RE
MANAGERS LTD., a company incorporated under the laws of Bermuda (the "Manager"),
MAX RE CAPITAL LTD., a company incorporated under the laws of Bermuda ("Max Re
Parent"), BAYERISCHE HYPO- UND VEREINSBANK AG, a company incorporated under the
laws of Germany ("HVB") and GRAND CENTRAL RE LIMITED, a company incorporated
under the laws of Bermuda (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Company is authorized to transact various classes of
insurance and reinsurance business in accordance with applicable law;
WHEREAS, the Manager carries on the business of administration in
respect of insurance and reinsurance companies; and
WHEREAS, the Company desires to appoint the Manager to provide certain
management services in respect of the Company's Business.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows:
ARTICLE I- DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions.
As used herein for purposes of this Agreement hereto, the following
terms have the following respective meanings:
"Affiliate": with respect to any Person, a Person who, directly or
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indirectly, through one or more intermediaries, controls, or is controlled by,
or is under common control with, such Person.
"Agreement": this Agreement and the Appendices and Schedules attached
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hereto.
"Agreement Quarter": each 3 month period beginning January 1, April 1,
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July 1 and October 1. The first Agreement Quarter begins on the Effective Date.
"Agreement Year": the period beginning 12:01 A.M., New York time,
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January 1 of one year and ending on 12:01 A.M., New York time, January 1 of the
immediately succeeding year. The first Agreement Year begins on the Effective
Date.
"Annual Business Plan": as defined in Section 2.3.
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"Asset/Surplus Ratio": the ratio of (i) invested assets to (ii) total
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capital and surplus of the Company.
"Books and Records": all materials, books and records and Data in
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whatever form or medium:
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(i) furnished by the Company to the Manager in connection with the
performance by the Manager of its obligations under this Agreement;
(ii) generated by the Manager in connection with the performance by
the Manager of its obligations under this Agreement; or
(iii) that in any way pertain to the performance of the obligations
of the Manager under this Agreement
, including books of account, Insurance and Reinsurance Contracts entered into
by the Company and all correspondence related thereto, underwriting files, claim
and reserving files, data on premium and claim payments and any and all
materials, books and records and Data relating to Company's Business. "Books and
Records" do not include Systems.
"Business Day": a day on which banks generally are open in the City of
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New York and Xxxxxxxx, Bermuda for the transaction of normal banking business
(other than a Saturday or Sunday).
"Company": as defined in the introductory paragraph of this Agreement.
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"Company Business": the insurance and reinsurance business of the
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Company.
"Confidential Information": as defined in Section 11.1.
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"Data": all data of the Company's Business which is processed by or
----
stored on the System.
"Disclosing Party": as defined in Section 11.1.
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"Effective Date": January 1, 2001.
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"Existing Company Business": as defined in Section 9.2.
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"Governmental Authority": any nation or government, any state or other
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political subdivision thereof, and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of government.
"Gross Premium Target Amounts": for the one calendar year period ending
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December 31, 2001, $100 million, for the two calendar year period ending
December 31, 2002, $300 million, and for all calendar years ending thereafter,
the gross premium targets for business of the Company as set forth in the Annual
Business Plan.
"HVB": as defined in the introductory paragraph of this Agreement.
---
"HVB Introduced Business": the insurance and reinsurance business
introduced from time to time to the Company by HVB or its Affiliates, including,
without limitation, such as may consist of related party bank or corporate owned
life insurance or other related-party business.
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"Indemnified Party": as defined in Section 7.3.
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"Indemnifying Party": as defined in Section 7.3.
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"Insurance and Reinsurance Contracts": policies of insurance, contracts
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of reinsurance and slips, binders, endorsements, riders and other insurance or
reinsurance documents.
"Liabilities. Actions and Damages": all claims, liabilities,
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obligations, fines, penalties, demands, causes of action, suits, judgments,
losses, injuries, damages, costs and expenses of whatsoever kind and nature
(including, without limitation, costs of investigation, defense, settlement and
reasonable attorneys' fees).
"Litigation": any action, cause of action, claim, demand, suit,
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proceeding, citation, summons, subpoena, inquiry or investigation of any nature,
civil, criminal, regulatory or otherwise, in law or in equity, pending or
threatened, by or before any court, tribunal, arbitrator or other Governmental
Authority .
"Manager": as defined in the introductory paragraph of this Agreement.
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"Max Re": Max Re Ltd.
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"Max Re Group": as defined in Section 2.2.
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"Max Re's Own Originated Business": as defined in Section 2.6.
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"Max Re Parent": as defined in the introductory paragraph of this
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Agreement.
"Max Re Parent Agreement": the Stock Purchase and Subscription
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Agreement, dated as of April 17, 2001, between Max Re Parent and HVB with
respect to the purchase by HVB of shares of capital stock of Max Re Parent.
"Person": includes an individual, firm, corporation, partnership,
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limited liability company, trust, association, unincorporated association,
Governmental Authority or other entity or body of persons.
"Receiving Party": as defined in Section 11.1.
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"Representatives": as defined in Section 11.1.
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"Reserves": as defined in Section 5.3.
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"Shareholders": the shareholders of the Company.
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"Stock Purchase and Subscription Agreement": the Stock Purchase and
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Subscription Agreement among HVB, Max Re Parent, Max Re and the Manager, dated
as of April 17, 2001 with respect to the organization of, and subscription for
shares of, the Company.
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"System": any system created or utilized by the Manager in the
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performance of its obligations under this Agreement, which systems include
computer programs, computer equipment, formats, risk data report formats,
procedures, documentation and internal reports.
"Term": the period from the 12:01 A.M., New York time on the Effective
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Date to 11:59 P.M. on the effective date of termination of this Agreement in
accordance with Article VIII.
Section 1.2 Other Definition and Interpretation Provisions.
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(a) The headings of the sections of this Agreement are
solely for convenience of reference and shall not affect the meaning,
construction or effect of this Agreement.
(b) All terms defined in this Agreement shall have the
defined meaning when used in any schedule, certificate or other
documents attached hereto or made or delivered pursuant hereto unless
otherwise defined therein.
(c) The term "including" means "including but not limited
to."
(d) Any reference herein to any statute, agreement or
document, or any section thereof, shall, unless otherwise expressly
provided, be a reference to such statute, agreement, document or
section as amended, modified, supplemented or re-enacted (including any
successor section) and in effect from time to time.
(e) Words denoting the singular number include the plural and
vice versa.
(f) Whenever used in this Agreement, the masculine gender
shall include the feminine and neutral genders.
(g) This Agreement shall be interpreted and enforced in
accordance with the provisions hereof without the aid of any canon,
custom or rule of law requiring or suggesting constitution against the
party causing the drafting of the provision in question.
ARTICLE II - APPOINTMENT AS MANAGER; ANNUAL BUSINESS PLAN; PERFORMANCE
STANDARDS; BOARD SUPERVISION; DELEGATION
Section 2.1 Appointment as Manager.
The Company appoints and authorizes the Manager during the Term of this
Agreement to provide the day-to-day management and administration of the Company
and the day-to-day carrying on of the Company Business, including:
(a) acting as Principal Representative of the Company in
accordance with the provisions of the Insurance Xxx 0000 and
regulations promulgated thereunder;
(b) maintaining a principal office in Bermuda on behalf of
the Company;
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(c) preparing the Annual Business Plan, incorporating
investment elements from the Investment Manager, for presentation and
approval by the Board of Directors of the Company;
(d) sourcing appropriate Insurance and Reinsurance Contracts
in accordance with the Annual Business Plan for the Company to
undertake;
(e) providing all necessary financial, underwriting and
actuarial analysis of any potential Insurance and Reinsurance
Contracts;
(f) maintaining and servicing Insurance and Reinsurance
Contracts related to the Company's Business, including issuing,
countersigning. endorsing, and terminating or canceling such contracts
and issuing notices of cancellation under such contracts;
(g) investigating, adjusting and settling claims under
Insurance and Reinsurance Contracts entered into by the Company,
including defending losses under such contracts and negotiating and
executing commutations of Insurance and Reinsurance Contracts entered
into by the Company;
(h) in conjunction with the Company auditors and attorneys,
monitoring and advising the directors and officers of the Company
regarding legal and regulatory requirements applicable to the Company
and assisting the Company in complying with such requirements;
(i) billing, receiving, and rendering receipts for and
processing such premium and loss funds on Insurance and Reinsurance
Contracts entered into by the Company as may be required;
(j) preparing and executing forms of Insurance and
Reinsurance Contracts to be issued by the Company;
(k) maintaining such records, ledgers and books of account,
with respect to the Company and the Company's Business as will
constitute a complete and current record of the financial condition of
the Company in accordance with established accounting principles
applicable to the business of insurance and reinsurance, as directed by
the Company's directors and officers;
(l) preparing comprehensive monthly financial statements
including profit and loss and balance sheet statements, cash flow
statements, statistical reports and information (including information
on outstanding loss reserves, reserves for incurred but not reported
losses and expenses) with respect to the Company and the Company's
Business as may be required by law or requested by the Company;
(m) preparing and filing all Bermuda government insurance
reports and returns on behalf of the Company and the Company's
Business;
(n) preparing, filing and paying all required tax reports
and returns relating to the Company's Business;
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(o) planning, coordinating and attending meetings of the
Company's Board of Directors;
(p) planning and testing annually disaster recovery
operations;
(q) planning, coordinating and attending the Company's
annual general meeting;
(r) negotiating with third parties for the provision of such
other services to the Company that the Company specifically requests;
(s) making withdrawals from time to time in accordance with
written authorization procedures established by the Company from any
bank account or accounts established by the Company in order to pay in
a timely manner, the necessary, reasonable and proper expenses of the
Company (it being understood that any interest that accrues on funds in
such account or accounts shall be the sole property of the Company).
Such expenses shall include:
(i) claim payments under Insurance and Reinsurance
Contracts entered into by the Company;
(ii) management fees to be paid, provided that
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payment of such management fees have first been approved by the
Board of Directors of the Company;
(iii) banking service fees;
(iv) fees of the Secretary of the Company;
(v) fees of the firm of auditors or chartered
accountants of the Company;
(vi) fees and taxes to appropriate regulatory
authorities of Bermuda;
(vii) fees of Bermuda directors of the Company;
(viii) communication costs;
(ix) travel and entertainment costs incurred by
officers of the Company; and
(x) other necessary expenses, as may be determined
by the Company.
(t) depositing all premiums and other sums collected or
received on the Company's behalf by the Manager directly and
immediately in an account or accounts established by the Company, in
the Company's name and for the Company's benefit, it being understood
that in no event and for no period of time may any such premiums or
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other sums be deposited in an account in the name or for the benefit of
any Person other than the Company;
(u) coordinating and cooperating with representatives,
including auditors, of the Company and HVB, providing such access to
Max Re's books and records and personnel as may be reasonably necessary
or desirable for HVB to monitor its investment in the Company, evaluate
the risks, systems and business of the Company and develop the
capability of employees of the Company to carry out such functions;
(v) undertaking the maintenance of the general ledger of
the Company, including the movement of cash in and out of the bank
accounts and/or the movement of securities in unregistered form;
(w) providing HVB, in its capacity as investment manager of
the Company, with cash demand forecasts so that HVB has time to arrange
the liquidation of sufficient investments to meet the Company's needs;
(x) undertaking the negotiation of all trust agreements
needed in connection with the collateralization of Insurance and
Reinsurance Contracts and their analysis as to the use of trust or
other type of vehicle which may be appropriate in the circumstances;
and
(y) annually engaging an independent actuary or accountant
to conduct an audit to confirm that the insurance and reinsurance
business (including life and annuity, property/casualty and other lines
of insurance business) generated by Max Re Group for the Company
reflects the percentage and type of insurance and reinsurance business
set forth in the Annual Business Plan and written by Max Re for its own
account, subject to the Gross Premium Target Amounts.
Section 2.2 Annual Business Plan.
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(a) Manager to Propose Annual Business Plan.
On an annual basis, the Manager will propose for the Shareholders'
review and majority approval an annual business plan for the Company for the
following financial year which will detail the anticipated business of the
Company for such year, including:
(i) the percentage (not being less than 15%,
unless a majority of the Board of Directors of the Company
decide on a lesser percentage due to the leverage of the
Company) and type of insurance and reinsurance business
(including underwriting guidelines, risk profiles and risk
objectives) which will be sourced by Max Re or Max Re Parent
or its Affiliates (collectively the "Max Re Group") and
allocated to the Company, relative to the total insurance
liabilities of Max Re Group;
(ii) the investment guidelines and objectives for
the management of the assets of the Company, as provided by
HVB;
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(iii) the total leverage which the Company will
employ (both in relation to premium volume and total
liabilities) in the execution of its insurance business; and
(iv) all other material operational matters
affecting the Company.
(b) Annual Business Plan Defined.
The first annual business plan and each subsequent annual business plan
proposed by the Manager pursuant to this Section 2.2 and approved by the
Shareholders shall be referred to herein as an "Annual Business Plan".
Section 2.3 Performance Standards.
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During the Term of this Agreement, the Manager shall be subject
to the following performance standards:
(a) The Manager shall perform all of its obligations under
this Agreement:
(i) to the best of its professional ability;
(ii) in accordance with the standard of care of a
professional insurance manager; and
(iii) with that degree of knowledge, skill and
judgment which is exercised by it with respect to its own
business and the business of its parent and insurance and
reinsurance Affiliates.
(b) The Manager shall comply with all applicable laws, rules
and regulations in respect of all activities conducted by it under this
Agreement.
Section 2.4 Board Supervision.
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The Manager shall be subject to the general supervision and specific
directions of the Board of Directors of the Company or their designees.
Section 2.5 Delegation of Authority.
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(a) The Manager shall not delegate or subcontract any of
its obligations to be performed hereunder to any other entity or
individual without the prior consent of the Company.
(b) Notwithstanding the prohibition set forth in Section
2.5(a), the Manager may delegate from time to time its obligations to
be performed hereunder to one or more professional independent
advisors, including, without limitation, independent actuaries,
accountants, claims adjusters and attorneys, provided that the Manager
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shall remain responsible for performance of the obligations so
delegated.
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Section 2.6 Intention of the Parties.
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(a) Without prejudice to the terms of this Agreement, the
Stock Purchase and Subscription Agreement or the terms of the Ancillary
Agreements (as defined in the Stock Purchase and Subscription
Agreement), it is the intent of the parties that:
(i) Max Re will participate pro rata with the
Company on the same terms and conditions on all transactions
that the Manager sources for the Company, to further ensure an
alignment of interests of Max Re and the Company.
(ii) The total insurance liabilities sourced by the
Manager and allocated to the Company will be 15% or more of
the total insurance liabilities of the Max Re Group, as set
out and agreed in the Annual Business Plan.
(iii) Subject to item (i) of this Subsection, at least
50% of the total insurance liabilities sourced by the Manager
on behalf of the Company will be insurance or reinsurance
written directly by the Company and/or insurance or
reinsurance fronted by Max Re and retroceded to the Company on
certain transactions where the Company is deemed not to be an
acceptable counterparty.
(iv) Subject to Item (i) of this Subsection, the
remainder of the total insurance liabilities sourced by the
Manager on behalf of the Company will be a quota share
retrocession from Max Re on insurance or reinsurance that Max
Re would have written solely for its own account, in the
absence of this Agreement ("Max Re's Own Originated
-----------------------
Business").
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(b) In light of Subsection (a) of this Section:
(i) the retrocession of Max Re's Own Originated
Business is likely to represent less than 50% of the Company's
total insurance liabilities and less than 8% of Max Re's Own
Originated Business; and
(ii) total cessions from Max Re to the Company,
inclusive of fronted insurance and reinsurance transactions,
is likely to represent 12% or less of Max Re's total insurance
liabilities.
ARTICLE III - REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations of the Manager.
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The Manager represents and warrants as of the date hereof as follows:
(a) The Manager is a company duly incorporated, validly
existing and in good standing under the laws of Bermuda.
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(b) The execution, delivery and performance by the Manager of
this Agreement are within the Manager's corporate powers, have been duly
authorized by all necessary corporate action, do not contravene
(i) the Manager's memorandum of association or bye-laws;
or
(ii) law or any regulation or contractual restriction
binding on or affecting the Manager.
(c) No authorization or approval or other action by, and
no notice to or filing with, any Governmental Authority is required for
the due execution, delivery and performance by the Manager of this
Agreement except for such filings with, and approvals of such
Governmental Authorities as will have been made and obtained prior to
the Effective Date.
(d) This Agreement is the legal, valid and binding
obligation of the Manager enforceable against the Manager in accordance
with its terms.
(e) The Manager is registered as an Insurance Manager
under the Insurance Xxx 0000 and the regulations promulgated
thereunder.
Section 3.2 Representations of the Company.
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The Company represents and warrants as of the date hereof as follows:
(a) The Company is a company duly incorporated, validly
existing and in good standing under the laws of Bermuda;
(b) The execution, delivery and performance by the Company of
this Agreement are within the Company's corporate powers, have been
duly authorized by all necessary corporate action, do not contravene;
(i) the Company's memorandum of association or bye-laws;
or
(ii) law or any regulation or contractual restriction
binding on or affecting the Company.
(c) No authorization or approval or other action by, and no notice
to or filing with, any Governmental Authority is required for the due
execution, delivery and performance by the Company of this Agreement
except for such filings with, and approvals of such Governmental
Authorities as will have been made and obtained prior to the Effective
Date;
(d) This Agreement is the legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms.
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Section 3.3 Section 3.3 Covenants of the Manager.
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The Manager covenants that, during the Term of this Agreement:
(a) the Manager shall within three (3) months after accepting a
risk on behalf of the Company, present such risk to the Company's Board of
Directors together with detailed analyses regarding the risk exposure insured by
the Company;
(b) unless otherwise approved by the Board of Directors of the
Company, the Manager shall apply the same reserving policy to each Insurance and
Reinsurance Contract entered into by the Company as Max Re applies to Max Re and
insurance and reinsurance Affiliates of Max Re Parent;
(c) notwithstanding the Gross Premium Target Amounts, the Manager
shall use commercially reasonable efforts in the conduct of the business of the
Company (unless the contrary is set forth in the applicable Annual Business Plan
or approved by the Company's Board of Directors) to achieve as a target a
Asset/Surplus Ratio of no greater than three-to-one (3:1) based on the capital
and surplus shown in the most recently available quarterly financial statements
of the Company; and
(d) it has or will at the time of performance have the necessary
knowledge, skills, facilities, licenses and authorizations to perform its
obligations to the Company under this Agreement.
Section 3.4 Section 3.4 Covenants of the Company.
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The Company covenants that, during the Term of this Agreement:
(a) it shall keep the Manager informed or cause to be kept
informed of all material developments relating to the Company's Business;
(b) it shall comply promptly with any reasonable request for
instructions or information which the Manager may make in order to perform its
obligations under this Agreement in an efficient manner and in compliance with
applicable Bermuda law;
(c) it shall promptly furnish the Manager with a copy of all
minutes of the meetings of and the resolutions adopted by the Board of Directors
of the Company and the committees thereof, but only to the extent that the
Manager was not present at any such meeting; and
(d) in the event that a ceding company does not accept the Company
as a direct reinsurer and Max Re Parent causes Max Re to accept the entire risk
for Max Re's own account and causes Max Re to retrocede to the Company the
percentage of insurance and reinsurance business set forth in the Annual
Business Plan, then the Company shall provide back-to-back letter of credit or
trust arrangements in accordance with market standards for the liabilities
retroceded from Max Re to the Company.
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ARTICLE IV - BOOKS AND RECORDS
Section 4.1 Books and Records.
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(a) The Manager shall keep, in a manner and form approved
by or acceptable to the Company, true and complete Books and Records of
all the Company's Business conducted under and pursuant to this
Agreement;
(b) The Manager shall maintain all records with regard to
the Company's Business separately from the records of its other
businesses, provided that the Company may use identical computer and
other systems so long as information with regard to the Company is
maintained separately and in an identifiable manner.
Section 4.2 Company Property.
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All Books and Records kept by the Manager in connection with the
Company's Business managed by the Manager shall be and remain the sole property
of the Company and will remain the property of the Company following termination
of this Agreement.
ARTICLE V - MANAGER COMPENSATION
Section 5.1 In General.
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As consideration for the Manager performing its obligations under this
Agreement, the Company will pay the Manager the fees set forth in this Article
V, subject to a maximum amount of $10 million per Agreement Year.
Section 5.2 Flat Fee.
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The Company shall pay the Manager each Agreement Quarter, within 15
business days of the end thereof, a pro-rata portion of a flat fee of $2 million
per Agreement Year, provided that the Manager in all material respects performs
its obligations pursuant to this Agreement and reaches certain Gross Premium
Target Amounts as to the amount of premium written during that Agreement Year.
Section 5.3 Reserve-based Fee.
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(a) The Company shall pay the Manager each Agreement
Quarter, within 15 business days of the end thereof, a fee based on:
(i) the sliding scale set out in subsection (b) of
this Section of the weighted averaged Reserves (averaged over
the preceding three (3) month period ending that Agreement
Quarter), less
(ii) amounts attributable to HVB Introduced Business,
less
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(iii) any increases in Reserves on business (other
than HVB Introduced Business) over Reserves initially
established for such business.
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(b) The sliding scale is as follows:
(i) 1.50% per annum of the first $300 million of
Reserves;
(ii) 1.00% per annum of the next $300 million of
Reserves;
(iii) 0.50% per annum of the next $300 million of
Reserves; and
(iv) 0.25% per annum of all amounts above $900
million.
(c) For the purposes of this Section 5.3, "Reserves" shall
include the periodic accretion of loss reserve discount and shall be
construed as follows:
(i) in relation to the life and annuity business
and retrospective property/casualty business of the Company,
the reserves established for such business; and
(ii) in relation to the other lines of insurance
business and prospective property/casualty business of the
Company, the present value of unpaid loss reserves for such
business up to a loss ratio of 100 percent.
Section 5.4 Fee for HVB Introduced Business.
-------------------------------
The Company shall pay the Manager each Agreement Quarter, within 15
business days of the end thereof, a one time fee of:
(a) 0.25% of net written premium attributable to HVB
Introduced Business for the first $300 million of such premium during
the Term of this Agreement; and
(b) 0.50% of net written premium attributable to HVB
Introduced Business for all such premium over $300 million during the
Term of this Agreement.
Section 5.5 Fee Refund.
-----------
In the event that at the end of each Agreement Year the Gross Premium
Target Amounts are not met, the Manager or, failing that, Max Re Parent shall,
within 15 business days, refund to the Company, $1 million for that Agreement
Year, provided that such refund shall not apply if the failure to meet the Gross
Premium Target Amounts is directly due to the acceptance by the Company of any
HVB Introduced Business. In the event that the Company and/or Max Re Parent has
made a prior refund to the Company for the first Agreement Year, and the Gross
Written Premium Target by the end of the second Agreement Year, excluding the
HVB Introduced Business, is exceeded and, provided that HVB has suffered no
--------
adverse tax or other regulatory consequences, the Company shall rebate the
refunded amounts (without interest) to the Manager and/or Max Re Parent, as the
case may be, after the end of the second Agreement Year.
13
Section 5.6 Services Covered by Fees.
------------------------
Day-to-day operational costs will be covered by the fees set forth in
Section 5.2, Section 5.3, Section 5.4 and Section 5.5, which will cover all
costs and responsibilities set out in this Agreement, including the secondment
of three (3) staff to the Company, rental space (including without limitation,
four dedicated fully equipped work-stations and shared use of conference rooms),
the use and management of the Max Re Parent general ledger system, current and
future telephone and information technology platforms and relevant links to HIVB
and other related costs.
Section 5.7 Additional Direct Expenses Payable by the Company.
--------------------------------------------------
The Company will pay the Manager directly only the following expenses
and such other expenses that the Company agrees to in advance from time to time:
(a) the following corporate expenses: annual audit,
corporate legal expenses, Board of Director's expenses and director's
and officer liability insurance premiums;
(b) the following direct transactional expenses: brokerage,
taxes, reinsurance letter of credit and reinsurance trust fees; and
(c) counsel fees related to litigation involving claims
under Insurance and Reinsurance Contracts entered into by the Company.
ARTICLE VI - ACCESS TO EMPLOYEES; EXAMINATION; AUDIT
Section 6.1 Access to Employees and Books and Records.
------------------------------------------
The Manager shall provide the Company and HVB (and its regulators or
auditor) access to employees of the Manager and the Books and Records of the
Company. In addition, the Manager shall permit employees of HVB to observe and
inspect the operations of the Manager as they relate to the risks insured by the
Company.
Section 6.2 Examination.
-----------
The Company or its representatives shall have the right to examine and
inspect at any reasonable time any and all of the Manager's books and records
relating to the Company's Business. At the Company's option, in lieu of the
Company or its representatives examining such books and records at the Manager's
place or places of business where such books and records are maintained by the
Manager, the Manager agrees to promptly provide copies of such books and records
to the Company on receipt of a written request from the Company. The Manager
shall cooperate fully with any such examination and provide all such books and
records requested by the Company or its representatives, subject to the
confidentiality provisions set forth in Article XI.
14
Section 6.3 Audit.
------
The Manager shall permit the Books and Records of the Company
maintained by it to be audited by an auditor appointed by the Company at any
time upon notice from the Company.
ARTICLE VII- INDEMNIFICATION AND INSURANCE
Section 7.1 Indemnification by Max Re Parent and the Manager.
-------------------------------------------------
(a) Max Re Parent and the Manager, jointly and severally,
shall indemnify and hold harmless the Company (and its directors,
officers, employees and agents) from and against any and all
Liabilities, Actions and Damages resulting from, arising out of or
directly relating to:
(i) any willful misconduct or gross negligence on
the part of the Manager; or
(ii) the breach by the Manager or any of its
employees of any representation, warranty, agreement or covenant
made under this Agreement.
(b) Notwithstanding the provisions of subsection (a) of
this Section, neither Max Re Parent nor the Manager shall be liable for
Liabilities, Actions and Damages resulting from, arising out of or
directly relating to:
(i) non-material breaches by the Manager of the
performance standards under Section 2.3;
(ii) failure of any HVB Introduced Business to meet
the underwriting criteria of the Company as set out in the
Annual Business Plan in effect at the time such HVB Introduced
Business first becomes insured or reinsured by the Company; or
(iii) failure of the Manager to comply with the
covenant set forth in Section 3.3(c) due to the kinds of
invested assets of the Company or performance of invested assets
of the Company which are outside the control of the Manager.
Section 7.2 Indemnification by the Company.
------------------------------
The Company shall indemnify and hold harmless the Manager (and its
directors, officers, employees and agents) from and against all Liabilities,
Actions and Damages brought or incurred by third parties to this Agreement
(other than any Affiliates of the Manager) resulting from, arising out of or
directly relating to:
(a) any error, omission, tort or any other negligence on the
part of the Manager, other than gross negligence, willful misconduct,
fraud or dishonesty of the Manager; or
15
(b) the Manager's performance of its obligations under this
Agreement to the extent such Liabilities, Actions and Damages are not
caused by any gross negligence, willful misconduct, fraud or dishonesty
of the Manager.
Section 7.3 Indemnification by HVB.
----------------------
(a) HVB shall indemnify and hold harmless the Manager (and
its directors, officers, employees and agents) from and against all
Liabilities, Actions and Damages resulting from, arising out of or
directly relating to any claims in relation to any failure of any HVB
Introduced Business to meet the underwriting criteria of the Company as
set forth in the Annual Business Plan in effect at the time such HVB
Introduced Business first becomes insured or reinsured by the Company.
(b) Notwithstanding the provisions of subsection (a) of this
Section, HVB shall not be liable for Liabilities, Actions and Damages
resulting from, arising out of or directly relating to:
(i) any claim made against the Manager (by or its
directors, officers, employees or agents) which is brought by
or on behalf of Max Re Parent or its Affiliates (or their
directors, officers, employees or agents);
(ii) any single claim for an amount that is less
than $10,000;
(iii) any failure to meet applicable Annual Business
Plan underwriting criteria that is subsequently approved or
ratified by the Board of Directors of the Company (including
the consent of both Max Re Parent and HVB); or
(iv) any gross negligence or willful misconduct,
fraud or dishonesty of the Manager.
Section 7.4 Indemnification Procedures.
--------------------------
(a) In the case of any claim asserted by a third party
against a party entitled to indemnification under Article VII (the
"Indemnified Party"), notice shall be given by the Indemnified Party to
-----------------
the party required to provide indemnification (the "Indemnifying
------------
Party") promptly after such Indemnified Party has actual knowledge of
-----
any claim as to which indemnity may be sought, and the Indemnified
Party shall permit the Indemnifying Party (at the expense of such
Indemnifying Party) to assume the defense of any claim or any
Litigation resulting therefrom, provided that:
--------
(i) counsel for the Indemnifying Party who shall
conduct the defense of such claim or Litigation shall be
satisfactory to the Indemnified Party, and the Indemnified
Party may participate in such defense at such Indemnified
Party's expense; and
(ii) the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying
Party of its indemnification obligation under this Agreement
except to the extent that such failure results in a lack of
16
actual notice to the Indemnifying Party or such Indemnifying
Party is materially prejudiced by way of any forfeiture of
rights or defenses or otherwise as a result of such failure to
give notice.
(b) Except with the prior written consent of the
Indemnified Party, no Indemnifying Party, in the defense of any such
claim or Litigation, shall consent to entry of any judgment or enter
into any settlement that provides for injunctive or other nonmonetary
relief affecting the Indemnified Party or that does not include as an
unconditional term thereof the giving by each claimant or plaintiff to
such Indemnified Party of a release from all liability with respect to
such claim or Litigation. The parties shall cooperate in the defense of
any claim or Litigation subject to this Article VII and the records of
each shall be available to the other with respect to such defense.
Section 7.5 Insurance Requirements.
----------------------
During the Term of this Agreement and for so long as the Manager has
any obligations hereunder, the Manager will maintain the following kinds of
insurance with one or more reputable insurers that are satisfactory to the
Company:
(a) Liability insurance that covers errors and omissions
arising out of the Manager's obligations under this Agreement which
shall, at a minimum, have the following features:
(i) a per occurrence limit of liability of at
least $5 million;
(ii) an annual aggregate limit of liability of at
least $5 million;
(iii) a deductible or self-insured retention of no
greater than $250,000;
(iv) a provision providing at least 30 days' notice
to the Company and HVB of:
1. cancellation;
2. nonrenewal;
3. reduction of coverage limits;
4. increased deductible and self-insured
retention; or
5. additional exclusions; and
(v) a provision adding the Company as an additional
named insured thereunder.
(b) Insurance coverage, in a form reasonably acceptable to
the Company, providing general liability insurance, automobile
liability insurance, workers' compensation and employers liability
insurance and fidelity (bond) coverage adequate
17
and suitable for its business and on such terms, covering such risks,
containing such deductibles and retentions and in such amounts as
insurance coverage customarily carried by the Max Re Group.
Section 7.6 Certificates of Insurance.
-------------------------
Upon execution of this Agreement and thereafter upon renewal, the
Manager will provide the Company with one or more certificates of insurance
evidencing the existence of the amounts and forms of insurance coverages
described in Section 7.5 These certificates of insurance must expressly evidence
the provisions mandated in Section 7.5.
ARTICLE VIII- TERM AND TERMINATION
Section 8.1 Term
----
This Agreement shall commence on the Effective Date and terminate as
provided in this Article VIII.
Section 8.2 Termination On Notice.
---------------------
This Agreement may be terminated by the Company or the Manager with at
least one year's prior written notice of termination, provided that termination
under this Section 8.2 shall be effective no earlier than the end of the third
Agreement Year.
Section 8.3 Termination by the Company For Cause.
-------------------------------------
This Agreement may be terminated by the Company immediately by notice
served on the Manager if at any time:
(a) the Manager or Max Re Parent, as the case may be, commits
a material breach of its obligations under this Agreement or Max Re
Parent or Max Re commits a material breach of the Stock Purchase and
Subscription Agreement or any other Ancillary Agreement (as defined in
the Stock Purchase and Subscription Agreement) and, in the case of a
breach capable of remedy, fails to remedy such breach within 7 days of
being specially required in writing to do so by the Company or HVB;
(b) Max Re, the Manager, Max Re Parent or any principal of any
thereof engages in fraud or dishonesty or any act involving moral
turpitude;
(c) Max Re loses its authority to carry on an insurance or
reinsurance business in Bermuda or the Manager loses its ability to
carry on an insurance management business in Bermuda;
(d) a distress, execution, sequestration or other process is
levied or enforced upon or sued out against the property of Max Re
Parent, Max Re or the Manager which is not discharged within 10 days;
18
(e) Max Re Parent, Max Re or the Manager is unable to pay its
debts in the normal course of business;
(f) Max Re Parent, Max Re or the Manager ceases or threatens
to cease, wholly or substantially, to carry on its business;
(g) an encumbrancer takes procession of or a receiver or
trustee is appointed over the whole or any part of the undertaking,
property or assets of Max Re Parent, Max Re or the Manager;
(h) an order is made or a resolution is passed for the
winding-up of Max Re Parent, Max Re or the Manager; or
(i) Max Re Parent ceases to own the controlling interest in,
or ceases to exercise effective day-to-day management control over or
permits the sale, transfer or other disposition of all or substantially
all of the assets of, Max Re or Manager.
Section 8.4 Termination by the Manager For Cause.
-------------------------------------
This Agreement may be terminated by the Manager immediately by notice
served on the Company if at any time:
(a) the Company commits a material breach of its obligations
under the Stock Purchase and Subscription Agreement, this Agreement or
any other Ancillary Agreement (as defined in the Stock Purchase and
Subscription Agreement) or HVB commits a material breach of the Stock
Purchase and Subscription Agreement and, in the case of a breach
capable of remedy, fails to remedy such breach within 7 days of being
specially required in writing to do so by the Manager;
(b) the Company engages in fraud or dishonesty or any act
involving moral turpitude, provided that such fraud, dishonesty or act
--------
does not, directly or indirectly, result from, arise out of or directly
relate to any act or failure to act by the Manager;
(c) the Company loses its authority to carry on an insurance
or reinsurance business in Bermuda, provided that such loss does not,
--------
directly or indirectly, result from, arise out of or directly relate to
any act or failure to act by the Manager;
(d) a distress, execution, sequestration or other process is
levied or enforced upon or sued out against the property of HVB or the
Company which is not discharged within 10 days;
(e) HVB or the Company is unable to pay its debts in the
normal course of business;
(f) HVB or the Company ceases or threatens to cease, wholly
or substantially, to carry on its business;
19
(g) an encumbrancer takes procession of or a receiver or
trustee is appointed over the whole or any part of the undertaking,
property or assets of HVB or the Company; or
(h) an order is made or a resolution is passed for the
winding-up of HVB or the Company.
Section 8.5 Performance During Period of Notice.
-----------------------------------
During any period of notice of termination, both the Manager and the
Company shall continue to perform their respective obligations in accordance
with the terms of this Agreement.
Section 8.6 No Prejudice.
------------
Termination in accordance with the above provisions, or howsoever
effected, shall take effect without prejudice to the rights and obligations of
the parties which have accrued at the date of termination or which may
subsequently accrue.
ARTICLE IX- TRANSFER OF EXISTING COMPANY BUSINESS
Section 9.1 In General.
-----------
In the event of:
(i) the winding-up of the Company;
(ii) a reduction of capital or other restructuring of
the Company;
(iii) the Company exiting of a particular type of
reinsurance business;
then the Manager or, failing th at, Max Re Parent shall use its best efforts to
retrocede to Max Re (and Max Re shall have the first right of refusal to) the
applicable book of Insurance and Reinsurance Contracts of the Company (the
"Existing Company Business") at the relevant time at market rates. If due to
-------------------------
sound business reasons, Max Re is unable to accept a retrocession of the
Existing Company Business, in whole or in part, then the Company or (failing
whom) Max Re Parent shall use its best efforts to retrocede the whole or (as the
case may be) part of the Existing Company Business to a third party at market
rates.
Section 9.2 Max Re Right to Bid.
--------------------
If, after this Agreement has been terminated, the Company is seeking to
retrocede any of the Existing Company Business (excluding the HVB Introduced
Business) then the Company will, as long as it does not disadvantage the
Company, allow Max Re to bid at market rates on such business.
20
ARTICLE X - EFFECT OF TERMINATION
Section 10.1 Fees.
-----
If this Agreement is terminated, then any fees under Article V with
respect to the performance of the Manager under this Agreement will be prorated
to the effective date of termination.
Section 10.2 Return of Books and Records.
---------------------------
(a) On or as of the termination of this Agreement, the
Company shall be entitled to require the Manager to carry out one or
more of the following:
(i) deliver to the Company or its designee, in a
mutually agreeable format, all the Books and Records, however
generated, relating to the Company's Business including any
off-line storage and security copies of the Data;
(ii) store on magnetic, optical or other media all or
any of the information then stored on-line relating the
Company's Business and to deliver such media, in a mutually
agreeable format, to the Company or its designee; and
(iii) make and deliver to the Company or its designee
such printouts of information relating to the Company's
Business as the Company may reasonably require.
(b) The Manager shall cooperate fully with the Company or
its designee in performing its obligations under this Section 10.2.
Section 10.3 Survival.
---------
The following provisions of this Agreement will survive the termination
of this Agreement: Articles I, IV, V, VII, X, XI and XII and Sections 9.2, 13.2
and 13.3.
ARTICLE XI- CONFIDENTIALITY
Section 11.1 In General.
-----------
Each of the Company and the Manager shall keep confidential and not use
or disclose any information previously or hereafter obtained by it pursuant to
this Agreement (the party receiving such information is hereinafter referred to
as the "Receiving Party") with respect to the other or such other's parents,
---------------
subsidiaries, Affiliates or other related entities (the party, or such party's
parents, subsidiaries, Affiliates or other related entities, with respect to
which the information relates is hereinafter referred to as the "Disclosing
----------
Party") in connection with this Agreement and the negotiations preceding this
-----
Agreement (such information is hereinafter referred to as the "Confidential
------------
Information"), and the Receiving Party will use such Confidential Information
-----------
solely in connection with the transactions contemplated by this Agreement, and
if the transactions contemplated hereby are not consummated for any reason, the
Receiving Party shall either return to the Disclosing Party, without retaining a
copy thereof, or
21
destroy, any schedules, documents or other written or electronically stored
information constituting Confidential Information (or prepared based upon such
Confidential Information) in connection with this Agreement and the transactions
contemplated hereby and the negotiations preceding this Agreement. Without
limiting the generality of the foregoing, the Receiving Party shall be permitted
to disclose any Confidential Information to such of its Affiliates, officers,
directors, employees, agents, lenders and representatives (collectively,
"Representatives") as have a need to know such Confidential Information,
---------------
provided such Representatives shall be informed that disclosure of such
--------
Confidential Information by such Representatives would be in contravention
hereof and the Receiving Party shall be responsible for any disclosure
prohibited hereby by any of its Representatives.
Section 11.2 Exceptions.
-----------
Notwithstanding Section 11.1, the Receiving Party shall not be required
to keep confidential or return any information which:
(a) is known or available through other lawful sources, not
bound by a confidentiality agreement with the Disclosing Party;
(b) is or becomes publicly known other than as a result of
the disclosure by the Receiving Party or its Representatives;
(c) is required to be disclosed pursuant to an order or
request of a judicial or governmental authority, an arbitrator or
arbitration panel or a selfregulatory body or pursuant to any law or
regulation in any jurisdiction (provided that the Disclosing Party,
to the extent permitted by law, is given reasonable prior written
notice); or
(d) is developed by the Receiving Party independently of,
and is not based upon, the Confidential Information.
ARTICLE XII - ARBITRATION
Section 12.1 Arbitration.
-----------
All disputes, controversies or claims arising out of, relating to, or
in connection with, this Agreement, or the breach, termination or validity
hereof, shall be finally settled by arbitration. The arbitration shall be
conducted in accordance with the Bermuda International Conciliation and
Arbitration Xxx 0000, except as same may be modified herein or by mutual
agreement of the parties. The seat of the arbitration shall be Bermuda, and it
shall be conducted in the English language.
Section 12.2 Arbitrators.
-----------
Unless the parties otherwise agree, the arbitration shall be conducted
by three arbitrators. Each party shall nominate one arbitrator by written notice
to the other party and the two arbitrators shall appoint the third arbitrator
who shall act as chairperson. Such nominations of the party-nominated
arbitrators shall be made within 14 days of the service of a written demand for
arbitration by either party. In the event that a party does not nominate an
arbitrator within such
22
14-day period or the two arbitrators are unable to agree on the third arbitrator
within 14 days after appointment of the party-appointed arbitrator or if the
third arbitrator declines to act, the appointment of the remaining arbitrator(s)
shall be made by the London Court of International Arbitration at the request of
either party.
Section 12.3 Qualification of Arbitrators.
----------------------------
The arbitrators nominated or appointed shall be impartial and, unless
the parties otherwise agree, either attorneys with specialist knowledge of the
reinsurance and insurance industry of at least 10 years admission to the bar, or
reinsurance and insurance industry professionals of at least 10 years standing.
Any objection to the qualifications of any arbitrator must be made, if at all,
within 10 days of notice of the nomination or appointment of such arbitrator.
Section 12.4 Procedure.
----------
The arbitral tribunal shall decide the procedure and time periods for
the arbitral proceedings so as to resolve the dispute, controversy or claim as
soon as practicable. Section
Section 12.5 Arbitration Award.
-----------------
The arbitral award shall be in writing, shall state reasons for the
award, and be final and binding on the parties. The award may include an award
of costs, including reasonable attorneys' fees and disbursements. Judgment on
the award may be entered by any court having jurisdiction thereof or having
jurisdiction over the parties or their assets.
Section 12.6 Consolidated Proceedings.
------------------------
In order to facilitate the comprehensive resolution of related
disputes, and upon request of any party to the arbitration proceeding, the
arbitration tribunal may, within 90 days of its appointment, consolidate the
arbitration proceeding with any other arbitration proceeding involving any of
the parties hereto relating to this Agreement, the Stock Purchase and
Subscription Agreement, the Max Re Parent Agreement or the other Ancillary
Agreements (as defined in the Stock Purchase and Subscription Agreement). The
arbitrators shall not consolidate such arbitrations unless they determine that
(i) there are issues of fact or law common to the two proceedings so that a
consolidated proceeding would be more efficient than separate proceedings, and
(ii) no party hereto would be prejudiced as a result of such consolidation
through undue delay or otherwise. In the event of different rulings on this
question by the arbitration tribunal constituted hereunder and the tribunal
constituted under Stock Purchase and Subscription Agreement, the ruling of the
panel appointed under the Stock Purchase and Subscription Agreement shall
control. In the case of a consolidated proceeding, the arbitrators in that
proceeding shall be named as provided in the Stock Purchase and Subscription
Agreement.
23
ARTICLE XIII- GENERAL
Section 13.1 Relationship of the Parties.
---------------------------
The Company and the Manager are independent of one another. Nothing in
this Agreement shall be deemed to create:
(a) a joint venture or partnership between the parties;
(b) a relationship of employer and employee;
(c) a relationship of principal and agent;
(d) or any relationship other than independent parties
contracting with each other solely for the purpose of carrying out the
provisions of this Agreement
Section 13.2 Notices.
--------
(a) Any notice or other communication required or permitted
to be given under this Agreement shall be in writing and (unless some
other method of giving the same is specified or accepted in writing by
the recipient) shall be effective:
(i) when personally delivered during normal business
hours to the addressee at the address designated for such delivery;
(ii) on the date of receipt specified in any return
receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully
prepaid, or sent by Federal Express or other recognized domestic
courier service, addressed to the addressee at such address; or
(iii) on the day it shall have been given by telex
(with appropriate answerback received) or facsimile
transmission if such facsimile is followed within two Business
Days by a written notice mailed in accordance with clause (ii)
above to the addressee at such address, whichever of the
foregoing shall first occur.
(b) Until otherwise specified by written notice, the
addresses for any such notice or other communication shall be as
follows:
If to the Manager:
Max Re Managers Ltd.
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx HIM 11
Bermuda
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
24
If to the Company:
Grand Central Re Limited
Ascot House
28 Queen Street
Xxxxxxxx XX 11
Bermuda
Attn: President
Tel: 000-000-0000
Fax: 000-000-0000
with copies to:
Bayerische Hypo- und Vereinsbank AG
do HVB America Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100 17-4679
Attention: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
and
Bayerische Hypo- und Vereinsbank AG
do HVB America Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
If to Max Re Parent:
Max Re Capital Ltd.
Xxxxx Xxxxx
00 Xxxxx Xxxxxx
Xxxxxxxx HIM 11
Bermuda
Attn: Chief Financial Officer
Tel: 000-000-0000
Fax: 000-000-0000
If to HVB:
Bayerische Hypo- und Vereinsbank AG
25
do HVB America Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Bayerische Hypo- und Vereinsbank AG
do HVB America Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 100174679
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
Section 13.3 Governing Law.
-------------
This Agreement shall be governed by and construed according to the laws
of the Bermuda.
Section 13.4 No Waiver.
----------
Failure of any party to enforce any provision of this Agreement shall
not constitute a course of conduct or waiver in the future of the right to
enforce the same or any other provision.
Section 13.5 Offset.
-------
The Company and the Manager may offset any balance due to it from the
other under this Agreement.
Section 13.6 Counterparts.
------------
This Agreement may be signed in multiple counterparts. Each counterpart
shall be considered an original instrument, but all of them in the aggregate
shall constitute one agreement.
Section 13.7 Severability.
------------
In the event that any word, sentence, paragraph provision or article of
this Agreement is found to be void or voidable, the remainder of this Agreement
shall nevertheless be legal and binding with the same force and effect as though
the void or voidable parts were deleted.
Section 13.8 Assignment and Third Party Beneficiaries.
----------------------------------------
This Agreement is entered into for the benefit of the parties hereto
and their respective successors, legal representatives and assigns. No other
person or entity shall obtain an interest
26
herein or be deemed to be a beneficiary of the provisions contained herein
except as specifically set forth herein. This Agreement may not be assigned by
any party without the written consent of the other parties.
Section 13.9 Integration: Amendment: Reliance.
--------------------------------
(a) This Agreement and the Side Letter (as defined in the
Stock Purchase and Subscription Agreement) sets out the entire
understanding of the parties with respect to the matters with which it
deals and may be amended or modified only by written instrument duly
executed by each party.
(b) Each party acknowledges that it has not relied upon
or been induced to enter into this Agreement by any representation
other than a representation expressly set out in this Agreement and
neither party shall be liable to the other in equity, contract, tort or
in any other way for any representation not expressly set out in this
Agreement.
27
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
MAX RE MANAGERS LTD.
By:
----------------------------------
Name: Xxxxx Xxxxx
Title: President
MAX RE CAPITAL LTD.
By:
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
BAYERISCHE HYPO- UND
VEREINSBANK AG
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
By:
------------------------------------
Name: Xxx X. Xxxxxxxxx
Title: Director
GRAND CENTRAL RE LIMITED
By:
------------------------------------
Name: Xxxxxxx Xxx
Title: Chairman of the Board
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Deputy
