EXHIBIT 10.29
Dated ___ November ___, 2002
ST. PAUL REINSURANCE COMPANY LIMITED
and
PLATINUM RE (UK) LIMITED
-----------------------------
UK RUN-OFF SERVICES AGREEMENT
-----------------------------
Slaughter and May
One Bunhill Row
London
EC1Y 8YY
(GWJ/GHXC)
CA021120043
CONTENTS
PAGE
1. Interpretation 2
2. Effective Date 4
3. UK Run-off Services 4
4. Audit Rights 7
5. Billing and Taxes 8
6. Confidentiality 8
7. Indemnification 9
8. Force Majeure 9
9. Data Protection and Business Information 10
10. Term and Termination 10
11. Arbitration 10
12. Miscellaneous 11
13. Notices 13
14. Governing Law 13
15. Counterparts 13
Schedule UK Run-off Services 15
THIS AGREEMENT is made on November 1, 2002
BETWEEN:
(1) ST. PAUL REINSURANCE COMPANY LIMITED (registered number 01460363) of
The St. Paul House, 27 Camperdown Street, London E1 8DS ("ST. PAUL RE
UK"); and
(2) PLATINUM RE (UK) LIMITED (registered number 4413755) of The St. Paul
House, 27 Camperdown Street, London E1 8DS ("PLATINUM RE UK"),
(each a "PARTY" and together the "PARTIES").
WHEREAS:
A. The St. Paul Companies, Inc. ("ST. PAUL") and Platinum Underwriters
Holdings, Ltd. ("PLATINUM HOLDINGS") entered into a Formation and
Separation Agreement dated 28th October, 2002 (as such agreement may be
amended from time to time) (the "FORMATION AGREEMENT") setting forth
certain terms governing St. Paul's sponsorship of the organisation of
Platinum Holdings and its subsidiaries, actions to be taken in respect
of Platinum Holdings' initial public offering (the "PUBLIC OFFERING")
of its common shares and the ongoing relationships between St. Paul and
its subsidiaries and Platinum Holdings and its subsidiaries after the
effective date of the Public Offering (the "CLOSING DATE").
B. Pursuant to the Formation Agreement, St. Paul and Platinum Holdings
agreed to procure (inter alia) that St. Paul Re UK, St. Paul Management
Limited and Platinum Re UK would enter into an agreement (the "BUSINESS
TRANSFER AGREEMENT") under which St. Paul Re UK would transfer certain
of the assets associated with its reinsurance activities to Platinum Re
UK.
C. Pursuant to the Formation Agreement, St. Paul and Platinum Holdings
further agreed to procure that St. Paul 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. Paul 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. Paul Re UK as reinsurer and
which will not be renewed following the Closing Date; (ii) the
reinsurance contracts which have been written, or which will be written
or renewed, by St. Paul Re UK as reinsurer and which will be one
hundred per cent. (100%) reinsured by a member of the Platinum group
pursuant to one of the Quota Share Retrocession Agreements (as defined
in the Formation Agreement), and (iii) the surplus lines insurance
contracts which have been written by St. Paul Re UK as primary insurer,
((i), (ii) and (iii) together, the "UK RUN-OFF CONTRACTS").
D. The Parties have agreed that the provision of services hereunder shall
be conducted in a manner that is consistent with the regulatory
requirements to which the Parties are respectively subject.
2
WHEREBY IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this agreement (including the recitals and the Schedules):
"ARIAS (UK)" has the meaning attributed to it in
sub-clause 11.3;
"AUTHORISATION" means the authorisation of Platinum Re UK
under Part IV of the Financial Services and
Markets Act 2000 to carry on reinsurance
business in the United Kingdom;
"BUSINESS TRANSFER has the meaning attributed to it in Recital
AGREEMENT" B;
"CLOSING DATE" has the meaning attributed to it in Recital
A;
"EVENTS OF FORCE MAJEURE" has the meaning attributed to it in
sub-clause 8.2;
"FORMATION AGREEMENT" has the meaning attributed to it in Recital
A;
"LOSSES" means any and all losses, liabilities,
claims, damages, obligations, payments,
costs and expenses, matured or unmatured,
absolute or contingent, accrued or
unaccrued, liquidated or unliquidated, known
or unknown (including, without limitation,
the costs and expenses of any Proceedings,
threatened Proceedings, demand, assessment,
judgment, settlement and compromise relating
thereto and legal fees and any and all
expenses whatsoever reasonably incurred in
investigating, preparing or defending
against any such Proceedings or threatened
Proceedings);
"PLATINUM HOLDINGS" has the meaning attributed to it in Recital
A;
"PLATINUM UK INDEMNITEES" has the meaning attributed to it in
sub-clause 7.1;
"PROCEEDINGS" means any proceeding, suit, action, claim,
arbitration, subpoena, discovery, request,
inquiry or investigation by or before any
court, any governmental or other regulatory
or administrative agency or commission or
any arbitral tribunal arising out of or in
connection with this agreement;
"PUBLIC OFFERING" has the meaning attributed to it in Recital
A;
3
"ST. PAUL" has the meaning attributed to it in Recital
A;
"ST. PAUL CONFIDENTIAL has the meaning attributed to it in
INFORMATION" sub-clause 6.1;
"UK RUN-OFF CONTRACTS" has the meaning attributed to it in Recital
C;
"UK RUN-OFF SERVICES" has the meaning attributed to it in
sub-clause 3.1;
"UK RUN-OFF SERVICES means this agreement; and
AGREEMENT"
"UK RUN-OFF SERVICES END has the meaning attributed to it in
DATE" sub-clause 3.4.
1.2 In this agreement, unless otherwise specified:
(A) references to clauses, sub-clauses and the Schedules are to
clauses and sub-clauses of, and the Schedules to, this
agreement;
(B) headings to clauses and the Schedules are for convenience only
and do not affect the interpretation of this agreement;
(C) the Schedules form part of this agreement and shall have the
same force and effect as if expressly set out in the body of
this agreement and any reference to this agreement shall
include the Schedules;
(D) references to an "AFFILIATE" shall be construed so as to mean
a person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common
control with, the person specified, where "CONTROL" means the
possession, directly or indirectly, of the power to direct or
cause the direction of the management policies of a person,
whether through the ownership of voting securities, by
contract, as trustee or executor, or otherwise;
(E) references to a "COMPANY" shall be construed so as to include
any company, corporation or other body corporate, wherever and
however incorporated or established;
(F) references to a "PERSON" shall be construed so as to include
any individual, firm, company, trust, governmental, state or
agency of a state or any joint venture, association,
partnership or other entity, whether acting in an individual,
fiduciary or other capacity (whether or not having separate
legal personality);
(G) the expressions "BODY CORPORATE" and "SUBSIDIARY" shall have
the meanings given in the Companies Act 1985, the Companies
Consolidation (Consequential Provisions) Act 1985, the
Companies Act 1989 and Part V of the Criminal Justice Act
1993;
4
(H) a reference to a statute or statutory provision shall include
a reference:
(i) to that statute or provision as from time to time
consolidated, modified, re-enacted or replaced by any
statute or statutory provision; and
(ii) to any subordinate legislation made under the
relevant statute;
(I) references to any English legal term for any action, remedy,
method of judicial proceeding, legal document, legal status,
court, official or any legal concept or thing shall in respect
of any jurisdiction other than England be deemed to include
terms which most nearly approximate in that jurisdiction to
the English legal term;
(J) references to writing shall include any modes of reproducing
words in a legible and non-transitory form;
(K) references to the "REGULATOR" in relation to either Party
means the Financial Services Authority or any successor
thereto; and
(L) references to the singular shall, where the context so admits,
include a reference to the plural and vice versa.
2. EFFECTIVE DATE
This agreement shall become effective on the Closing Date.
3. UK RUN-OFF SERVICES
3.1 Subject always to sub-clause 3.12, Platinum Re UK shall provide to St.
Paul Re UK from time to time after the Closing Date at the reasonable
request of St. Paul Re UK the services of senior personnel who are
reasonably acceptable to St. Paul Re UK and who have the expertise and
experience reasonably necessary to assist St. Paul Re UK in relation to
the administration of the UK Run-off Contracts by St. Paul Re UK, by
providing the services set out in the Schedule (as such may be amended
from time to time with the prior agreement of the Parties)
(collectively, the "UK RUN-OFF SERVICES").
3.2 Platinum Re UK shall provide each of the UK Run-off Services in such
manner as St. Paul 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.
5
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 Closing Date
(the "UK RUN-OFF SERVICES END DATE"), provided that Platinum Re UK
shall consider in good faith any request by St. Paul 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. Paul 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. Paul 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. Paul 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. Paul 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. Paul 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.
6
(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. Paul Re UK and St. Paul 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 the Schedule to this
agreement.
(C) Prior to providing them with access to its facilities, St.
Paul 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. Paul 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.
Paul 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. Paul Re UK's reinsurance and accounting
systems to the extent necessary and provided that St.
Paul 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. Paul Re UK working hours and shall not
interfere unreasonably with the normal operations of
St. Paul Re UK.
(E) Platinum Re UK acknowledges that the Platinum Re UK employees
who are to have access to St. Paul 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
7
shall not, use such information for any purpose or disclose
the information to any third parties, except as required by
applicable law or governmental authority.
3.10 The Parties shall co-operate with each other and all relevant
regulatory authorities to satisfy any regulatory requirements
applicable to either of them by virtue of the provision of UK Run-off
Services to St. Paul Re UK hereunder.
3.11 St. Paul Re UK shall grant to Platinum Re UK a licence to use any
service mark or trade mark or any other intellectual property right
necessary for the provision of the UK Run-off Services by Platinum Re
UK in accordance with the provisions of this agreement.
3.12 Nothing in this agreement shall entitle or oblige Platinum Re UK to
provide any service to St. Paul Re UK to the extent that the provision
of such service would involve Platinum Re UK carrying on reinsurance
business in the United Kingdom unless and until Platinum Re UK has
received Authorisation.
4. AUDIT RIGHTS
4.1 Upon reasonable prior notice, each Party hereto shall have full access
to any books and records maintained by the other and its affiliates
insofar as reasonably necessary for the purposes of confirming amounts
properly payable hereunder or satisfying any duty imposed hereby or
resulting herefrom.
4.2 Each Party shall permit and co-operate with any inspection by the
regulator or appointee of the regulator in relation to the provision of
any of the UK Run-off Services hereunder.
4.3 As soon as reasonably practicable following any request (or, in the
case of access required by the regulator, whether with or without
notice being given by the regulator), access shall be provided to
auditors, other nominated inspectors of the requesting Party or the
regulator or the appointee of the regulator to relevant facilities
where records are maintained and provision shall be made for such
auditors, other inspectors or the regulator or the appointee of the
regulator to receive such assistance as they shall reasonably request
in relation thereto.
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.
8
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. Paul Re UK a report
containing an itemised list of the UK Run-off Services provided to St.
Paul Re UK during such previous calendar quarter in such form as the
Parties shall agree.
5.2 St. Paul Re UK shall promptly, and in any event within 30 days after
receipt of such report unless St. Paul 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. Paul 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. Paul
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.
Paul Re UK or a member of St. Paul Re UK's group (the "ST. PAUL
CONFIDENTIAL INFORMATION").
6.2 St. Paul 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. Paul Confidential
Information, Platinum Re UK shall provide St. Paul Re UK with prompt
written notice of the request or requirement, to permit St. Paul Re UK
(if it so elects) to seek an appropriate protective order preventing or
limiting disclosure. If St. Paul Re UK seeks such an order or takes
other steps to avoid or limit such disclosure, Platinum Re UK shall
co-operate with St. Paul Re UK at
9
St. Paul Re UK's expense. If, in the absence of such protective order,
Platinum Re UK is compelled to disclose St. Paul Confidential
Information, Platinum Re UK may disclose such St. Paul Confidential
Information without liability hereunder.
7. INDEMNIFICATION
7.1 St. Paul 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. Paul Re UK pursuant to this
agreement; or
(B) any breach by St. Paul 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. Paul Re UK, its officers, directors and employees
("ST. PAUL RE UK INDEMNITEES") from and against any and all
Losses incurred by any St. Paul 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. Paul Re UK pursuant to sub-clause 3.6 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
10
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 Act 1998
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. Paul Re UK may terminate any or all of the UK Run-off Services upon
sixty days' prior written notice at any time to Platinum Re UK.
11. ARBITRATION
11.1 All matters in difference between the Parties arising under, out of or
in connection with this agreement, including formation and validity,
and whether arising during or after the 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 A.I.D.A.
Reinsurance and Insurance Arbitration Society of the UK ("ARIAS (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 ARIAS (UK).
11
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.
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
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) Act
1999, 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, nor are the terms of
this agreement intended to constitute the Parties a joint employer for
any purpose.
12.9 Following receipt by Platinum Re UK of the necessary Authorisation,
each of the Parties agrees that the provisions of this agreement as a
whole shall not constitute control of the other Party or provide it
with the ability to control such other Party, and each Party expressly
disclaims any right or power under this agreement to exercise any power
whatsoever over the management or policies of the other.
12.10 Nothing in this agreement shall oblige either Party to act in breach of
the requirements of any law, rule or regulation applicable to it,
including securities and insurance laws, written policy statements of
securities commissions, insurance and other regulatory authorities, and
the by-laws, rules, regulations and written policy statements of
relevant securities and self-regulatory organisations.
13
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. Paul Re UK, to:
St. Paul Reinsurance Company Limited
27, Camperdown Street,
London, E1 8DS
Fax number: 020 7488 6345
marked for the attention of the Company Secretary
if to Platinum Re UK, to:
Platinum Re (UK) Limited
52, Lime Street,
London, EC3M 7NL
Fax number: 020 7623 6610
marked for the attention of the Company Secretary
or to such other address or fax number, and marked for the attention of
such other person, as may from time to time be notified by the relevant
Party to the other Party.
13.2 Any such notice shall be sent by first class post or facsimile
transmission (copied by post) or delivered by hand and shall be deemed
to be served:
(A) in the case of post, on the second business day after posting;
(B) in the case of facsimile transmission, upon successful
transmission (or, if the day of sending is not a business day
in the place of receipt, at the opening of business on the
first business day in the place of receipt thereafter); and
(C) in the case of delivery by hand, upon delivery (or, if the day
of delivery is not a business day in the place of receipt, at
the opening of business on the first business day in the place
of receipt thereafter).
14. GOVERNING LAW
This agreement shall be governed by and construed in accordance with
English law.
15. COUNTERPARTS
15.1 This agreement may be executed in any number of counterparts, and by
the Parties on separate counterparts, but shall not be effective until
each Party has executed at least one counterpart.
14
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.
15
SCHEDULE
UK RUN-OFF SERVICES
- Claims management and handling services - in
particular, St. Paul Re UK will need access to
Michael Coldman and his assistance in relation to any
legal disputes relating to claims files previously
handled by him, and access to and assistance from
underwriting personnel in relation to legal disputes;
- Contract writing services - in particular, St. Paul
Re UK will need access to contract wording services
and underwriting expertise extending to contact and
negotiating with brokers and clients on underwriting
questions;
- Actuarial reserving expertise - in particular through
access to Minesh Shah
- Credit control, tax and accounting expertise - in
particular through access to various individuals
including (without limitation) Guy Butler;
- General systems expertise from various individuals
including access to all information technology
personnel;
- Consulting services from Thomas Mahoney;
- Access to and assistance from Thomas Mahoney, Guy
Butler and Minesh Shah in relation to general St.
Paul Re UK business issues previously handled by
them;
- Access to other individuals also in the event of a UK
audit; and
- Incidental services.
16
SIGNED by )
for and on behalf of ST. PAUL ) /s/ G.R. Butler
REINSURANCE COMPANY )
LIMITED )
SIGNED by )
for and on behalf of PLATINUM ) /s/ T.J. Mahoney
RE (UK) LIMITED )