EXHIBIT 10.39
SERVICES AND CAPACITY RESERVATION AGREEMENT
This Agreement, dated as of November 1, 2002, is entered into by and
between Platinum Underwriters Holdings, Ltd. ("Platinum"), a company organized
and existing under the laws of Bermuda and RenaissanceRe Holdings Ltd.
("RenaissanceRe"), a company organized and existing under the laws of Bermuda.
WHEREAS, Platinum has requested that RenaissanceRe cause Renaissance
Reinsurance Ltd. or another one or more of its affiliates reasonably acceptable
to Platinum (such affiliates, collectively, "Renaissance") to provide certain
services and reserve capacity for one or more of Platinum's reinsurance
subsidiaries (such subsidiaries, collectively, the "Company");
WHEREAS, RenaissanceRe has agreed to cause Renaissance to provide
services and reserve capacity for the Company pursuant to the terms hereof;
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Services and Capacity Reservation to be Provided.
(a) Consulting Services.
Upon request of Platinum, no more frequently than twice for each
Annual Period (as hereinafter defined), in October and March or at such other
times as may be agreed to by Renaissance, Renaissance shall:
(i) following receipt from the Company of necessary information
requested by Renaissance pursuant to the final paragraph of this Section 1(a),
provide advice and analysis to the Company with respect to the risk measurement
and management of the Company's aggregate catastrophe exposures; and
(ii) analyze such of the Company's property catastrophe treaties as
are furnished to Renaissance and provide a retrocession pricing indication, such
analysis to indicate which underlying treaties are causing debits and credits in
the quotations to be provided under paragraph (b) of this Section 1;
provided, however, that neither RenaissanceRe nor Renaissance shall
make any management decisions on behalf of the Company or undertake to commit
the Company to any course of action, and all decisions as to the Company's
catastrophe treaties and catastrophe exposure shall be the sole responsibility
of the Company.
Section 1 above, Platinum shall pay Renaissance US$4,000,000 at the inception of
this Agreement and on each October 1 beginning October 1, 2003 through and
including October 1, 2006.
(b) No later than thirty (30) days after the end of each Annual
Period, Platinum shall pay Renaissance an adjustment fee ("Adjustment Fee")
equal to the amount, if any, by which 3.5% of the aggregate gross written
non-marine non-finite property catastrophe premium (including reinstatements) of
the Company (as classified by the Company in accordance with accepted industry
practice) for the applicable Annual Period exceeds the amount paid with respect
to Section 3(a). In the event that 3.5% of such gross written non-marine
non-finite property catastrophe premium (including reinstatements) in an Annual
Period is less than or equal to the amount paid with respect to Section 3(a),
Renaissance shall not be entitled to an Adjustment Fee for that Annual Period.
(c) The consideration provided in Section 3(a) and (b) above shall
be in addition to any retrocessional premiums paid to Renaissance with respect
to the Retrocessional Coverage bound by Renaissance for the benefit of Platinum
and the Company
4. Confidential and Proprietary Information.
The parties acknowledge that this Agreement does not constitute a
sale, lease, license, or other transfer by Renaissance of any proprietary
systems or intellectual property of Renaissance.
5. Relationships among the Parties.
Nothing in this Agreement shall cause the relationship between the
Company on the one hand and Renaissance on the other to be deemed to constitute
an agency, partnership or joint venture. The terms of this Agreement are not
intended to constitute any of the parties or their affiliates a joint employer
for any purpose. Each of the parties agrees that the provisions of this
Agreement as a whole are not intended to, and do not, constitute control of the
other party (or any affiliates thereof) or provide it with the ability to
control such other party (or any affiliates thereof), and each party hereto
expressly disclaims any right or power under this Agreement to exercise any
power whatsoever over the management or policies of the other (or any affiliates
thereof). Nothing in this Agreement shall oblige either party hereto to act in
breach of the requirements of any law, rule or regulation applicable to it,
including securities, insurance and trade regulation laws and regulations,
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 organizations.
6. Governing Law.
This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to its conflict of laws
principles.
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7. Arbitration.
(a) As a condition precedent to any right of action under this Agreement,
any dispute or difference between the parties hereto relating to the formation,
interpretation, or performance of this Agreement, or any transaction under this
Agreement, whether arising before or after termination, shall be submitted for
decision to a panel of three arbitrators (the "Panel") at the offices of
Judicial Arbitration and Mediation Services, Inc. in accordance with the
Streamlined Arbitration Rules and Procedures of Judicial Arbitration and
Mediation Services, Inc.
(b) The party demanding arbitration shall do so by written notice
complying with the terms of Section 11. The arbitration demand shall state the
issues to be resolved and shall name the arbitrator appointed by the demanding
party.
(c) Within 30 days of receipt of the demand for arbitration, the
responding party shall notify the demanding party of any additional issues to be
resolved in the arbitration and the name of the responding party's appointed
arbitrator. If the responding party refuses or neglects to appoint an arbitrator
within 30 days following receipt of the written arbitration demand, then the
demanding party may appoint the second arbitrator, but only after providing 10
days' written notice of its intention to do so, and only if such other party has
failed to appoint the second arbitrator within such 10 day period.
(d) The two arbitrators shall, before instituting the hearing, select an
impartial arbitrator who shall act as the umpire and preside over the hearing.
If the two arbitrators fail to agree on the selection of a third arbitrator
within 30 days after notification of the appointment of the second arbitrator,
the selection of the umpire shall be made by the American Arbitration
Association. Upon resignation or death of any member of the Panel, a replacement
will be appointed in the same fashion as the resigning or deceased member was
appointed. All arbitrators shall be active or former officers of
property/casualty insurance or reinsurance companies, or Lloyd's underwriters,
and shall be disinterested in the outcome of the arbitration.
(e) Within 30 days after notice of appointment of all arbitrators, the
Panel shall meet and determine timely periods for briefs, discovery procedures
and schedules for hearings. The Panel shall have the power to determine all
procedural rules for the holding of the arbitration, including but not limited
to the inspection of documents, examination of witnesses and any other matter
relating to the conduct of the arbitration. The Panel shall interpret this
Agreement as an honorable engagement and not as merely a legal obligation and
shall make its decision considering the custom and practice of the applicable
insurance and reinsurance business. The Panel shall be relieved of all judicial
formalities and may abstain from following the strict rules of law. The decision
of any two arbitrators shall be binding and final. The arbitrators shall render
their decision in writing within 60 days following the termination of the
hearing. Judgment upon the award may be entered in any court of competent
jurisdiction.
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(f) Except as otherwise provided herein, all proceedings pursuant hereto
shall be governed by the laws of the State of New York without giving effect to
any choice or conflict of laws provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
(g) The parties agree that any disputes subject to arbitration pursuant to
this Section 7 that may also be subject to arbitration proceedings between
respective affiliates of the parties shall be consolidated with and subject to
arbitration pursuant to this Section 7. The parties further agree that all
issues that are limited to a specific foreign jurisdiction under an agreement
between the respective affiliates of the parties shall be determined by this
Panel pursuant to the consolidation, in reference to the governing law of the
applicable agreement.
(h) Each party shall bear the expense of its own arbitrator and shall
share equally with the other party the expense of the umpire and of the
arbitration.
(i) Arbitration hereunder shall take place in New York, New York unless
the parties agree otherwise.
8. Assignment.
Neither this Agreement nor the rights or obligations hereunder shall
be assignable by either party hereto, by operation of law or otherwise, without
the prior written consent of the other party hereto, and any purported
assignment shall be null and void. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
9. Entire Agreement.
This Agreement constitutes the entire agreement, and supersedes all
prior agreements and understandings (oral and written), by and among the parties
hereto with respect to the subject matter hereof.
10. No Third Party Rights.
Nothing contained in this Agreement, express or implied, establishes
or creates, or is intended or will be construed to establish or create, any
right in or remedy of, or any duty or obligation to, any third party.
11. Notices.
All notices, requests, claims, demands, and other communications
hereunder will be in writing and shall be deemed to have been duly given if
delivered by hand (with receipt confirmed), or by certified mail, postage
prepaid and return receipt requested, or by
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facsimile addressed as follows (or to such other address as a party may
designate by written notice to the others) and shall be deemed given on the date
on which such notice is received:
If to RenaissanceRe:
RenaissanceRe Holdings Ltd.
Renaissance House
8-12 East Broadway
Pembroke HM19 Bermuda
Attention: Stephen H. Weinstein, General Counsel
Facsimile: (441) 296-5037
If to Platinum:
Platinum Underwriters Holdings, Ltd.
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Attn.: Michael E. Lombardozzi
Facsimile: (441) 292-4720
12. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
13. Amendment; Modification.
The parties may by written agreement, subject to any regulatory
approval as may be required, (a) extend the time for the performance of any of
the obligations or other acts of the parties hereto (b) waive any inaccuracies
in the documents delivered pursuant to this Agreement, and (c) waive compliance
with or modify, amend or supplement any of the agreements contained in this
Agreement or waive or modify performance of any of the obligations of any of the
parties hereto. This Agreement may not be amended or modified except by an
instrument in writing duly signed on behalf of the parties hereto.
14. Waiver.
No failure by any party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right,
unless expressly waived in writing.
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15. Severability.
To the extent any provision of this Agreement shall be invalid or
unenforceable, it shall be considered deleted here from and the remaining
provisions of this Agreement shall be unaffected and shall continue in full
force and effect.
16. Headings.
Headings contained in this Agreement are for reference purposes
only. They shall not affect in any way the meaning or interpretation of this
Agreement.
17. Condition Precedent.
The closing of the initial public offering of common stock of
Platinum is a condition precedent to the effectiveness of this Agreement and the
rights, duties and obligations of the parties hereunder.
18. Indemnification
(a) Platinum unconditionally agrees to indemnify and hold harmless
RenaissanceRe, Reniassance and each of its officers, directors, employees,
representatives, agents, affiliates and successors (each, an "Indemnified
Person"), from and against any and all liabilities of, costs incurred by
(including, without limitation, reasonable fees and expenses, including
reasonable counsel fees and expenses), or damages to any Indemnified Person
arising under or resulting from or in connection with, or in any way related to,
this Agreement and the transactions and services contemplated hereby
(collectively, "Losses"), including such Losses incurred by third parties for
which any Indemnified Person may be liable; provided, however, there shall be
excluded from such indemnification any such liabilities, costs or damages that
arise out of, or are based upon, any action or failure to act by RenaissanceRe,
Renaissance or their respective directors, employees, representatives, agents,
affiliates or successors, other than an action or failure to act undertaken at
the request of Platinum, that is found in a final judicial determination to
constitute bad faith, willful misconduct or gross negligence on the part of such
party.
(b) An Indemnified Person who is claiming indemnification from
Platinum pursuant to the provisions of 18(a) above, shall promptly deliver a
written notification of each claim for indemnification, accompanied by a copy of
all papers served, if any, and specifying in detail the nature of, basis for,
and estimated amount of the claim for indemnification to Platinum (the
"Indemnifying Person"). If an Indemnified Person fails to promptly notify the
Indemnifying Person, then the obligation to indemnify shall be reduced by the
amount of liability that is attributable to or becomes definite as a result of
the delay in notification. The Indemnifying Person shall have the right to
assume the defense of any matter for which a claim of indemnification is made
against it with counsel it selects, at its own expense. The Indemnifying Person
shall not, except with the consent of each Indemnified Person, which consent
shall not be unreasonably withheld or delayed, consent to
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the entry of any judgment, or enter into any settlement, that does not include
the giving by the claimant or plaintiff to the Indemnified Person of a release
from all liability in respect to the claim or litigation. Each Indemnified
Person shall cooperate in providing information, formulating a defense or as
otherwise reasonably requested by the Indemnifying Person.
(c) Each Indemnified Person shall provide written, detailed
statements to the Indemnifying Person, on a calendar monthly basis, of any
expenses, costs or other liabilities for which indemnification is claimed. The
Indemnifying Person shall reimburse such amounts within thirty (30) business
days of receiving any such statement or shall notify in writing the Indemnified
Person claiming indemnification if it denies liability and the reasons for the
denial.
19. Termination.
This Agreement may not be terminated except as provided herein.
Notwithstanding the foregoing, either party may terminate this Agreement in the
event that the other is deemed impaired or insolvent by applicable regulatory or
judicial authorities or is the subject of conservation, rehabilitation,
liquidation, bankruptcy or other similar insolvency proceedings.
20. Obligations.
RenaissanceRe shall cause Renaissance to perform each of
Renaissance's obligations under this Agreement and shall be responsible for any
breach by Renaissance of such obligations. Platinum shall cause the Company to
perform each of the Company's obligations under this Agreement and shall be
responsible for any breach by the Company of such obligations.
21. Survival.
The provisions of Sections 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16,
18, 20 and 21 hereof shall survive termination of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized officers as of the date first above
written.
RENAISSANCERE HOLDINGS LTD.
By: /s/ John M. Lummis
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Name: John M. Lummis
Title: Executive Vice President and
Chief Financial Office
PLATINUM UNDERWRITERS HOLDINGS, LTD.
By: /s/ Jerome T. Fadden
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Name: Jerome T. Fadden
Title: President & CEO
[Signature Page to Services And Capacity Reservation Agreement}