UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d)
of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
March 2, 2015
Platinum
Underwriters Holdings, Ltd.
(Exact name of registrant as specified in its charter)
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| Bermuda |
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001-31341 |
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98-0416483 |
| (State of other Jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
Waterloo House
100 Pitts Bay Road
Pembroke HM 08 Bermuda
(Address of principal executive offices) (Zip Code)
Registrant’s telephone number, including area code: (441) 295-7195
Not Applicable
(Former
name or address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 1.01. |
Entry Into a Material Definitive Agreement. |
Credit Agreement Amendment and Guaranty
Effective March 2, 2015, Platinum Underwriters Holdings, Ltd. (“Platinum”), which became a wholly owned subsidiary of RenaissanceRe
Holdings Ltd. (“RenaissanceRe”) after giving effect to the Merger (as defined below), entered into a Consent and Amendment to Credit Agreement (the “Credit Agreement Amendment”) with Wells Fargo Bank, National
Association (“Wells Fargo”), the Lenders party thereto and certain subsidiaries of Platinum party thereto (the “Subsidiary Borrowers”). The Credit Agreement Amendment amends the Third Amended and Restated
Credit Agreement, dated as of April 9, 2014, by and among Platinum, the Subsidiary Borrowers, Wells Fargo and the lenders party thereto (as amended, supplemented or otherwise modified from time to time, the “Platinum Credit
Agreement”). Among other things, the Credit Agreement Amendment (a) evidenced the Lenders’ consent to the Merger, (b) reduced the aggregate commitment under the Platinum Credit Agreement to $100 million, all of which is
available for letters of credit, (c) eliminated the sublimit under the Platinum Credit Agreement for revolver borrowings, (d) reflected the addition of RenaissanceRe as a guarantor of the obligations of the borrowers under the Platinum
Credit Agreement and (e) eliminated or modified certain of the covenants and events of default under the Platinum Credit Agreement.
Effective
March 2, 2015, RenaissanceRe entered into a Guaranty (the “Credit Agreement Guaranty”) for the benefit of the lenders under the Platinum Credit Agreement pursuant to which RenaissanceRe guaranteed the obligations of Platinum
and the Subsidiary Borrowers under the Platinum Credit Agreement and agreed to certain information reporting and financial covenants. The financial covenants are the same as those in RenaissanceRe’s existing revolving credit agreement.
The foregoing descriptions of the Credit Agreement Amendment and the Credit Agreement Guaranty are qualified in their entirety by reference to the full text
of the Credit Agreement Amendment and the Credit Agreement Guaranty, which are filed as Exhibits 10.1 and 10.2 hereto, respectively, and are incorporated herein by reference.
Facility Agreement Amendment and Guaranty
Effective
March 2, 2015 and after consummation of the Merger, Platinum Underwriters Bermuda, Ltd. (“Platinum Bermuda”), as borrower, and Platinum, as guarantor, entered into a Consent and Amendment to Facility Agreement (the
“Facility Agreement Amendment”) with National Australia Bank Limited and ING Bank, N.V. The Facility Agreement Amendment amends the Uncommitted $125,000,000 Facility Agreement, dated as of July 31, 2012, by and among Platinum
Bermuda, Platinum, National Australia Bank Limited and ING Bank, N.V. (as amended, supplemented or otherwise modified from time to time, the “Facility Agreement”). Among other things, the Facility Agreement Amendment
(a) evidenced the consent of National Australia Bank Limited and ING Bank, N.V. to the Merger, (b) reflected the addition of RenaissanceRe as a guarantor of the obligations of Platinum and Platinum Bermuda under the Facility Agreement and
(c) eliminated or modified certain of the covenants and events of default under the Facility Agreement.
Effective March 2, 2015, RenaissanceRe
entered into a Guaranty (the “Facility Agreement Guaranty”) for the benefit of National Australia Bank Limited and ING Bank, N.V. pursuant to which RenaissanceRe guaranteed the obligations of Platinum Bermuda and Platinum under the
Facility Agreement and agreed to certain information reporting and financial covenants. The financial covenants are the same as those in RenaissanceRe’s existing revolving credit agreement.
The foregoing descriptions of the Facility Agreement Amendment and the Facility Agreement Guaranty are qualified in their entirety by reference to the full
text of the Facility Agreement Amendment and the Facility Agreement Guaranty, which are filed as Exhibits 10.3 and 10.4 hereto, respectively, and are incorporated herein by reference.
| Item 2.01. |
Completion of Acquisition or Disposition of Assets. |
Effective March 2, 2015, pursuant to
the Agreement and Plan of Merger, dated as of November 23, 2014 (“Merger Agreement”), by and among Platinum, RenaissanceRe and Port Holdings Ltd. (“Acquisition Sub”), a wholly owned subsidiary of RenaissanceRe,
Acquisition Sub was merged with and into Platinum, with Platinum continuing as the surviving company and as a wholly owned subsidiary of RenaissanceRe (the “Merger”).
Pursuant to the terms of the Merger Agreement, as a result of the Merger, each common share of Platinum, par value $0.01 per share (the “Company
Common Shares”), issued and outstanding immediately prior to the effective time of the Merger (other than Company Common Shares owned by Platinum, RenaissanceRe or any of their respective subsidiaries and Company Common Shares held by
holders who did not vote in favor of the Merger and have complied with all of the provisions of the Companies Act 1981 of Bermuda concerning the rights of holders of Company Common Shares to require appraisal of their Company Common Shares pursuant
to Bermuda law) was canceled and converted, at the holder’s election in accordance with the procedures set forth in the Merger Agreement, into the right to receive (i) an amount of cash equal to $66.00, (ii) 0.6504 common shares of
RenaissanceRe, par value $1.00 per share (the “Parent Common Shares”) (the “Share Election Consideration”) or (iii) 0.2960 Parent Common Shares and an amount of cash equal to $35.96. Because the Share Election
Consideration option was substantially oversubscribed in the election, the consideration to be received by holders who elected the Share Election Consideration will be prorated pursuant to the terms set forth in the Merger Agreement. In addition,
prior to the effective time of the Merger, Platinum paid a special dividend of $10.00 per Company Common Share to the holders of record of issued and outstanding Company Common Shares on February 27, 2015.
The issuance of Parent Common Shares in connection with the Merger was registered under the Securities Act of 1933, as amended, pursuant to
RenaissanceRe’s registration statement on Form S-4 (File No. 333-201066) filed with the SEC on December 19, 2014 and declared effective on January 15, 2015.
The foregoing description of the Merger Agreement and the Merger does not purport to be complete and is qualified in its entirety by reference to the full
text of the Merger Agreement filed as Exhibit 2.1 to Platinum’s Current Report on Form 8-K dated as of November 24, 2014 and incorporated herein by reference.
A copy of Platinum’s press release announcing the consummation of the Merger is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
| Item 3.01. |
Notice of Delisting or Failure to Satisfied a Continued Listing Rule or Standard; Transfer of Listing. |
Trading in the Company Common Shares on the New York Stock Exchange (“NYSE”) will be suspended as of close of business on March 2, 2015.
As a consequence of the Merger, Platinum expects that a Form 25 will be filed by the NYSE on or around March 3, 2015, with the Securities and Exchange Commission (the “SEC”) to provide notification of the removal of the Company
Common Shares from listing on the NYSE and from registration under Section 12(b) of the Securities Exchange Act of 1934. Platinum intends to file a Form 15 with the SEC in due course to terminate the registration of the Company Common Shares
under the Exchange Act and suspend its reporting obligations under Section 15(d) of the Exchange Act.
| Item 3.03. |
Material Modification to Rights of Security Holders. |
The information set forth in Item 2.01
above and Item 5.03 below is incorporated herein by reference.
| Item 5.01. |
Changes in Control of Registrant. |
The information set forth in Item 2.01 is incorporated
herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
Pursuant to the terms of the Merger Agreement, upon the consummation of the Merger, (i) the
directors of Acquisition Sub, Kevin J. O’Donnell, Jeffrey D. Kelly and Mark A. Wilcox, became the directors of Platinum, and (ii) the officers of Acquisition Sub, Kevin J. O’Donnell, Jeffrey D. Kelly and Stephen H. Weinstein, became
officers of Platinum, each effective March 2, 2015. Each director and officer is to serve until his or her successor is duly elected or appointed and qualified or until his or her earlier death, verification or removal in accordance with
Platinum’s bye-laws.
In connection therewith, (i) each of Dan R. Carmichael, A. John Hass, Antony P.D. Lancaster, Edward R. Megna, Michael D.
Price, Linda E. Ransom and Christopher J. Steffen resigned from Platinum’s board of directors and from all committees of Platinum’s board of directors on which they directors served and (ii) each of Michael D. Price, Allan C. Decleir,
and Michael E. Lombardozzi resigned as officers of Platinum, each effective March 2, 2015.
| Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year |
Effective March 2,
2015, in connection with the consummation of the Merger, Platinum altered its Memorandum of Association and amended and restated its Amended and Restated Bye-Laws in their entirety. The altered Memorandum of Association of Platinum and the Amended
and Restated Bye-Laws of Platinum are attached hereto as Exhibit 3.1 and 3.2, respectively and are hereby incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits. |
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Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of November 23, 2014, by and among Platinum, RenaissanceRe Holdings Ltd. and Port Holdings Ltd. (incorporated by reference to Exhibit 2.1 of Platinum’s Current Report on Form 8-K filed
with the SEC on November 24, 2014) |
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| 3.1 |
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Altered Memorandum of Association of Platinum Underwriters Holdings, Ltd. |
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| 3.2 |
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Amended and Restated Bye-Laws of Platinum Underwriters Holdings, Ltd. |
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| 10.1 |
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Consent and Amendment to Credit Agreement, dated as of March 2, 2015, by and among Platinum Underwriters Holdings, Ltd., certain subsidiaries of Platinum Underwriters Holdings, Ltd. party thereto, Wells Fargo Bank, National
Association, as administrative agent, and the Lenders party thereto. |
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| 10.2 |
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Guaranty, dated as of March 2, 2015, entered into by RenaissanceRe Holdings Ltd. for the benefit of Wells Fargo Bank, National Association, as administrative agent, and the other Lenders referred to
therein. |
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| 10.3 |
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Consent and Amendment to Facility Agreement, dated as of March 2, 2015, by and among Platinum Underwriters Bermuda, Ltd., Platinum Underwriters Holdings, Ltd., National Australia Bank Limited, as agent, security agent and a lender,
and ING Bank, N.V., as a lender. |
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| 10.4 |
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Guaranty, dated as of March 2, 2015, entered into by RenaissanceRe Holdings Ltd. for the benefit of National Australia Bank Limited, as agent, security agent and a lender, and ING Bank, N.V., as a lender. |
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| 99.1 |
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Copy of Press Release issued by Platinum Underwriters Holdings, Ltd., dated March 2, 2015. |
Cautionary Statement Regarding Forward-Looking Statements
This communication contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Forward-looking statements are based on Platinum’s current plans or expectations that are inherently subject to significant business, economic and competitive uncertainties and contingencies. These uncertainties
and contingencies can affect actual results and could cause actual results to differ materially from those expressed in any forward-looking statements made by, or on behalf of, Platinum. In particular, statements using words such as “may,”
“should,” “estimate,” “expect,” “anticipate,” “intend,” “believe,” “predict,” “potential,” or words of similar import generally involve forward-looking statements. The
inclusion of forward-looking statements in this communication should not be considered as a representation by Platinum or any other person that Platinum’s or RenaissanceRe’s current plans or expectations will be achieved. Numerous factors
could cause actual results to differ materially from those in such forward-looking statements, including, but not limited to: the ability to recognize the benefits of the Merger; the amount of the costs, fees, expenses and charges related to the
Merger; the ability to retain key personnel; the frequency and severity of catastrophic and other events; the effectiveness of the companies’ loss limitation methods and pricing models; uncertainties in the companies’ reserving processes;
the companies’ ability to maintain their respective A.M. Best and S&P financial strength ratings; risks associated with appropriately modeling, pricing for, and contractually addressing new or potential factors in loss emergence; risks that
the companies might be bound to policyholder obligations beyond their underwriting intent; risks due to the companies’ reliance on a small and decreasing number of reinsurance brokers and other distribution services; risks relating to operating
in a highly competitive environment; risks relating to deteriorating market conditions; the risk that the companies’ customers may fail to make premium payments due to them; the risk of failures of the companies’ reinsurers, brokers or
other counterparties to honor their obligations to the companies; the effect on the companies’ respective businesses of potential changes in the regulatory system under which they operate; the effects that the imposition of U.S. corporate
income tax would have on Platinum Underwriters Holdings, Ltd., RenaissanceRe Holdings Ltd. and their respective non-U.S. subsidiaries; other risks relating to potential adverse tax developments; risks relating to adverse legislative developments;
risks associated with the companies’ investment portfolios; losses that the companies could face from terrorism, political unrest and war; changes in economic conditions or inflation; and other factors affecting future results disclosed in
Platinum’s and RenaissanceRe’s filings with the SEC, including but not limited to those discussed under Item 1A, “Risk Factors,” in Platinum’s Annual Report on Form 10-K for the year ended December 31, 2014 and
RenaissanceRe’s Annual Report on Form 10-K for the year ended December 31, 2014.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
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| Platinum Underwriters Holdings, Ltd. |
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| By: |
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/s/ Michael E. Lombardozzi |
| Name: |
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Michael E. Lombardozzi |
| Title: |
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Executive Vice President, Chief Administrative Officer, General Counsel and Secretary |
Dated: March 2, 2015
Exhibit Index
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Exhibit
No. |
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Description |
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| 2.1 |
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Agreement and Plan of Merger, dated as of November 23, 2014, by and among Platinum Underwriters Holdings, Ltd, RenaissanceRe Holdings Ltd. and Port Holdings Ltd. (incorporated by reference to Exhibit 2.1 of Platinum’s Current
Report on Form 8-K filed with the SEC on November 24, 2014). |
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| 3.1 |
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Altered Memorandum of Association of Platinum Underwriters Holdings, Ltd. |
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| 3.2 |
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Amended and Restated Bye-Laws of Platinum Underwriters Holdings, Ltd. |
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| 10.1 |
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Consent and Amendment to Credit Agreement, dated as of March 2, 2015, by and among Platinum Underwriters Holdings, Ltd., certain subsidiaries of Platinum Underwriters Holdings, Ltd. party thereto, Wells Fargo Bank, National
Association, as administrative agent, and the Lenders party thereto. |
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| 10.2 |
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Guaranty, dated as of March 2, 2015, entered into by RenaissanceRe Holdings Ltd. for the benefit of Wells Fargo Bank, National Association, as administrative agent, and the other Lenders referred to therein. |
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| 10.3 |
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Consent and Amendment to Facility Agreement, dated as of March 2, 2015, by and among Platinum Underwriters Bermuda, Ltd., Platinum Underwriters Holdings, Ltd., National Australia Bank Limited, as agent, security agent and a lender,
and ING Bank, N.V., as a lender. |
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| 10.4 |
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Guaranty, dated as of March 2, 2015, entered into by RenaissanceRe Holdings Ltd. for the benefit of National Australia Bank Limited, as agent, security agent and a lender, and ING Bank, N.V., as a lender. |
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| 99.1 |
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Copy of Press Release issued by Platinum Underwriters Holdings, Ltd., dated March 2, 2015. |
Exhibit 3.1
FORM NO. 2
BERMUDA
THE COMPANIES ACT 1981
MEMORANDUM
OF ASSOCIATION OF
COMPANY LIMITED BY SHARES
(Section 7(1) and (2))
ALTERED MEMORANDUM OF ASSOCIATION
OF
Platinum Underwriters
Holdings, Ltd.
(hereinafter referred to as “the Company”)
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1. |
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The liability of the members of the Company is limited to the amount (if any) for the time being unpaid on the shares respectively held by them. |
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2. |
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We, the undersigned, namely, |
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NAME |
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ADDRESS |
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BERMUDIAN
STATUS (Yes/No) |
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NATIONALITY |
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NUMBER OF
SHARES SUBSCRIBED |
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Dawn C. Griffiths |
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Clarendon House |
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Yes |
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British |
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One |
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2 Church Street |
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Hamilton HM 11 |
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Bermuda |
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Anthony D. Whaley |
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” |
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Yes |
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British |
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One |
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James M. Macdonald |
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” |
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Yes |
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British |
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One |
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do hereby respectively agree to take such number of shares of the Company as may be allotted to us respectively by the provisional directors of the Company, not exceeding the number of shares for which we have respectively
subscribed, and to satisfy such calls as may be made by the directors, provisional directors or promoters of the Company in respect of the shares allotted to us respectively. |
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3. |
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The Company is to be an exempted Company as defined by the Companies Act 1981. |
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4. |
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The Company, with the consent of the Minister of Finance, has power to hold land situate in Bermuda not exceeding in all, including the following parcels:- |
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N/A |
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| Amended 2/3/15 |
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5. |
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The authorised share capital of the Company is US$12,000100 divided into shares of 2/3/15 US$1.00 each. The minimum subscribed share capital of the Company is
US$12,000. |
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| Amended 2/3/15 |
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6. |
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The objects for which the Company is formed and incorporated are - |
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to carry on all and or any functions of a holding company; |
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2. |
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to create, enter into, undertake, procure, arrange for, acquire by purchase or otherwise, hold, sell or otherwise dispose of, trade and or otherwise deal in, whether on a speculative basis or otherwise, all and or any kind
of (including without limitation all and or any combinations of) (a) instrument or contract to pay or not to pay a sum of money or render money’s worth on the happening of event or events, specified date or dates or the expiration of
period or periods of time or activity, (b) derivative instrument or contract, and (c) instrument or contract structured or intended as, or having, the purpose or intended purpose of securing a profit or avoiding a loss (i) by
reference to fluctuations in the value or price of property of any description, or in an index, or other factor or factors, specified for that purpose in the instrument or contract, or (ii) based on the happening of particular event or events,
specified date or dates or expiration of period or periods of time or activity specified for that purpose in the instrument or contract, and including, without limitation of the foregoing, all and or any kind of (including without limitation all and
or any combinations of) option, swap option contract, bond, warrant, debenture, equity, forward exchange contract, forward rate contract, future, hedge, security, note, certificate of deposit, unit, guarantee and or financial
instrument; |
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3. |
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packaging of goods of all kinds; |
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4. |
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buying, selling and dealing in goods of all kinds; |
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5. |
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designing and manufacturing of goods of all kinds; |
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6. |
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mining and quarrying and exploration for metals, minerals, fossil fuel and precious stones of all kinds and their preparation for sale or use; |
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7. |
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exploring for, the drilling for, the moving, transporting and refining petroleum and hydro carbon products including oil and oil products; |
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8. |
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scientific research including the improvement discovery and development of processes, inventions, patents and designs and the construction, maintenance and operation of laboratories and research centres; |
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9. |
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land, sea and air undertakings including the land, ship and air carriage of passengers, mails and goods of all kinds; |
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10. |
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ships and aircraft owners, managers, operators, agents, builders and repairers; |
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11. |
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acquiring, owning, selling, chartering, repairing or dealing in ships and aircraft; |
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12. |
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travel agents, freight contractors and forwarding agents; |
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13. |
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dock owners, wharfingers, warehousemen; |
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14. |
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ship chandlers and dealing in rope, canvas oil and ship stores of all kinds; |
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15. |
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all forms of engineering; |
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16. |
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farmers, livestock breeders and keepers, graziers, butchers, tanners and processors of and dealers in all kinds of live and dead stock, wool, hides, tallow, grain, vegetables and other produce; |
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17. |
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acquiring by purchase or otherwise and holding as an investment inventions, patents, trade marks, trade names, trade secrets, designs and the like; |
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18. |
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buying, selling, hiring, letting and dealing in conveyances of any sort; |
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19. |
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employing, providing, hiring out and acting as agent for artists, actors, entertainers of all sorts, authors, composers, producers, directors, engineers and experts or specialists of any kind; |
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20. |
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to create or acquire by purchase or otherwise and hold, sell, dispose of and deal in real property situated outside Bermuda and in personal property of all kinds wheresoever situated; and |
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21. |
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to enter into any guarantee, contract of indemnity or suretyship and to assure, support or secure with or without consideration or benefit the performance of any obligations of any person or persons and to guarantee the
fidelity of individuals filling or about to fill situations of trust or confidence. |
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6. |
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The objects for which the Company is formed and incorporated are unrestricted. |
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| Amended 2/3/15 |
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7. |
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Powers of the Company |
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1. |
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The Company shall, pursuant to Section 42 of the Companies Act 1981, but subject to restrictions, if any, that may be provided in the Bye-laws of the Company from time to time, have the power to issue
preference shares which are, at the option of the holder, liable to be redeemed. |
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2. |
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The Company shall, pursuant to Section 42A of the Companies Act 1981, but subject to restrictions, if any, that may be provided in the Bye-laws of the Company from time to time, have the power to purchase
its own shares. |
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The following are provisions regarding the powers of the Company: |
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(i) |
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has the powers of a natural person; |
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(ii) |
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subject to the provisions of Section 42 of the Companies Act 1981, has the power to issue preference shares which at the option of the holders thereof are to be liable to be redeemed; |
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(iii) |
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has the power to purchase its own shares in accordance with the provisions of Section 42A of the Companies Act 1981; and |
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(iv) |
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has the power to acquire its own shares to be held as treasury shares in accordance with the provisions of Section 42B of the Companies Act 1981. |
Exhibit 3.2
BYE-LAWS
of
Platinum Underwriters Holdings, Ltd.
BYE-LAWS
OF
Platinum
Underwriters Holdings, Ltd.
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| Bye-Law |
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Subject |
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Page |
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| 1. |
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Definitions and Interpretation |
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1 |
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| 2. |
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Registered Office |
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3 |
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| 3. |
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Share Rights |
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3 |
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| 4. |
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Modification of Rights |
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4 |
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| 5. |
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Shares |
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4 |
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| 6. |
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Certificates |
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5 |
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| 7. |
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Lien |
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5 |
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| 8. |
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Calls on Shares |
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6 |
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| 9. |
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Forfeiture of Shares |
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7 |
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| 10. |
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Register of Shareholders |
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8 |
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| 11. |
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Register of Directors and Officers |
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8 |
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| 12. |
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Transfer of Shares |
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8 |
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| 13. |
|
Transmission of Shares |
|
|
9 |
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| 14. |
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Increase of Capital |
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|
10 |
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| 15. |
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Alteration of Capital |
|
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11 |
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| 16. |
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Reduction of Capital |
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11 |
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| 17. |
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General Meetings and Resolutions in Writing |
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12 |
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| 18. |
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Notice of General Meetings |
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13 |
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| 19. |
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Proceedings at General Meetings |
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13 |
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| 20. |
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Voting |
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15 |
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| 21. |
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Proxies and Corporate Representatives |
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17 |
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| 22. |
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Appointment and Removal of Directors |
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18 |
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| 23. |
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Resignation and Disqualification of Directors |
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19 |
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| 24. |
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Alternate Directors |
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20 |
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| 25. |
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Directors’ Fees and Additional Remuneration and Expenses |
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20 |
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| 26. |
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Directors’ Interests |
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21 |
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| 27. |
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Powers and Duties of the Board |
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21 |
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| 28. |
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Delegation of the Board’s Powers |
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22 |
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| 29. |
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Proceedings of the Board |
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23 |
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| 30. |
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Officers |
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25 |
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| 31. |
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Minutes |
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25 |
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| 32. |
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Secretary and Resident Representative |
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26 |
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| 33. |
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The Seal |
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26 |
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| 34. |
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Dividends and Other Payments |
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|
27 |
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| 35. |
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Reserves |
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28 |
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| 36. |
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Capitalisation of Profits |
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28 |
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| 37. |
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Record Dates |
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29 |
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| 38. |
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Accounting Records |
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29 |
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| 39. |
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Audit |
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30 |
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| 40. |
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Service of Notices and Other Documents |
|
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30 |
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| 41. |
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Winding Up |
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|
32 |
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| 42. |
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Indemnity |
|
|
32 |
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| 43. |
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Amalgamation and Merger |
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|
33 |
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| 44. |
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Continuation |
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33 |
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| 45. |
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Alteration of Bye-Laws |
|
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33 |
|
BYE-LAWS
of
Platinum
Underwriters Holdings, Ltd.
INTERPRETATION
| 1. |
DEFINITIONS AND INTERPRETATION |
| 1.1 |
In these Bye-Laws, unless the context otherwise requires: |
Alternate Director: means an
alternate Director appointed to the Board as provided for in these Bye-Laws;
Auditor: means the person or firm for the time
being appointed as auditor of the Company;
Bermuda: means the Islands of Bermuda;
Board: means the Directors of the Company appointed or elected pursuant to these Bye-Laws and acting by resolution as provided for in
the Companies Acts and in these Bye-Laws or the Directors present at a meeting of Directors at which there is a quorum;
Companies Acts: means every Bermuda statute from time to time in force concerning companies insofar as the same applies to the
Company;
Company: means Platinum Underwriters Holdings, Ltd., a company originally incorporated in Bermuda on
19 April 2002;
Director: means such person or persons appointed or elected to the Board from time to time
pursuant to these Bye-Laws and includes an Alternate Director;
Indemnified Person: means any Director, Officer, Resident
Representative, member of a committee duly constituted under these Bye-Laws and any liquidator, manager or trustee for the time being acting in relation to the affairs of the Company, and his heirs, executors and administrators;
Officer: means a person appointed by the Board pursuant to these Bye-Laws but shall not include the Auditor;
paid up: means paid up or credited as paid up;
Register: means the Register of Shareholders of the Company maintained by the Company in Bermuda;
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Registered Office: means the registered office of the Company which shall be at such place
in Bermuda as the Board shall from time to time determine;
Resident Representative: means (if any) the individual or the
company appointed to perform the duties of resident representative set out in the Companies Acts and includes any assistant or deputy Resident Representative appointed by the Board to perform any of the duties of the Resident Representative;
Resolution: means a resolution of the Shareholders passed in a general meeting or, where required, of a separate class or
separate classes of shareholders passed in a separate general meeting or in either case adopted by resolution in writing, in accordance with the provisions of these Bye-Laws;
Seal: means the common seal of the Company and includes any authorised duplicate thereof;
Secretary: means the individual or the company appointed by the Board to perform any of the duties of the Secretary and includes a
temporary or assistant or deputy Secretary;
share: means share in the capital of the Company and includes a fraction of a
share;
Shareholder: means a shareholder or member of the Company provided that for the purposes of Bye-Law 42 it shall also
include any holder of notes, debentures or bonds issued by the Company;
these Bye-Laws: means these Bye-Laws in their
present form.
| 1.2 |
For the purposes of these Bye-Laws, a corporation which is a shareholder shall be deemed to be present in person at a general meeting if, in accordance with the Companies Acts, its authorised representative is present.
|
| 1.3 |
For the purposes of these Bye-Laws, a corporation which is a Director shall be deemed to be present in person at a Board meeting if an officer, attorney or other person authorised to attend on its behalf is present, and
shall be deemed to discharge its duties and carry out any actions required under these Bye-Laws and the Companies Acts, including the signing and execution of documents, deeds and other instruments, if an officer, attorney or other person authorised
to act on its behalf so acts. |
| 1.4 |
Words importing only the singular number include the plural number and vice versa. |
| 1.5 |
Words importing only the masculine gender include the feminine and neuter genders respectively. |
| 1.6 |
Words importing persons include companies, associations, bodies of persons, whether corporate or not. |
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| 1.7 |
Words importing a Director as an individual shall include companies, associations and bodies of persons, whether corporate or not. |
| 1.8 |
A reference to writing shall include typewriting, printing, lithography, photography and electronic record. |
| 1.9 |
Any words or expressions defined in the Companies Acts in force at the date when these Bye-Laws or any part thereof are adopted shall bear the same meaning in these Bye-Laws or such part (as the case may be).
|
REGISTERED OFFICE
The Registered Office shall be at such place in Bermuda as the Board
shall from time to time appoint.
SHARES AND SHARE RIGHTS
| 3.1 |
Subject to any special rights conferred on the holders of any share or class of shares, any share in the Company may be issued with or have attached thereto such preferred, deferred, qualified or other special rights or
such restrictions, whether in regard to dividend, voting, return of capital or otherwise, as the Company may by Resolution determine or, if there has not been any such determination or so far as the same shall not make specific provision, as the
Board may determine. |
| 3.2 |
Subject to the Companies Acts, any preference shares may, with the sanction of a resolution of the Board, be issued on terms: |
| |
(a) |
that they are to be redeemed on the happening of a specified event or on a given date; and/or, |
| |
(b) |
that they are liable to be redeemed at the option of the Company; and/or, |
| |
(c) |
if authorised by the memorandum of association of the Company, that they are liable to be redeemed at the option of the holder. |
The terms and manner of redemption shall be provided for in such resolution of the Board and shall be attached to but shall not form part of
these Bye-Laws.
| 3.3 |
The Board may, at its discretion and without the sanction of a Resolution, authorise the purchase by the Company of its own shares upon such terms as the Board may in its discretion determine, provided always that such
purchase is effected in accordance with the provisions of the Companies Acts. |
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| 3.4 |
The Board may, at its discretion and without the sanction of a Resolution, authorise the acquisition by the Company of its own shares, to be held as treasury shares, upon such terms as the Board may in its discretion
determine, provided always that such acquisition is effected in accordance with the provisions of the Companies Acts. The Company shall be entered in the Register as a Shareholder in respect of the shares held by the Company as treasury shares and
shall be a Shareholder of the Company but subject always to the provisions of the Companies Acts and for the avoidance of doubt the Company shall not exercise any rights and shall not enjoy or participate in any of the rights attaching to those
shares save as expressly provided for in the Companies Acts. |
| 4. |
MODIFICATION OF RIGHTS |
| 4.1 |
Subject to the Companies Acts, all or any of the special rights for the time being attached to any class of shares for the time being issued may from time to time (whether or not the Company is being wound up) be
altered or abrogated with the consent in writing of the holders of not less than seventy-five per cent (75%) of the issued shares of that class or with the sanction of a resolution passed at a separate general meeting of the holders of such
shares voting in person or by proxy. To any such separate general meeting, all the provisions of these Bye-Laws as to general meetings of the Company shall mutatis mutandis apply, but so that the necessary quorum shall be one or more persons
holding or representing by proxy any of the shares of the relevant class, that every holder of shares of the relevant class shall be entitled on a poll to one vote for every such share held by him and that any holder of shares of the relevant class
present in person or by proxy may demand a poll. |
| 4.2 |
The special rights conferred upon the holders of any shares or class of shares shall not, unless otherwise expressly provided in the rights attaching to or the terms of issue of such shares, be deemed to be altered by
the creation or issue of further shares ranking pari passu therewith. |
| 5.1 |
Subject to the provisions of these Bye-Laws, the unissued shares of the Company (whether forming part of the original capital or any increased capital) shall be at the disposal of the Board, which may offer, allot,
grant options over or otherwise dispose of them to such persons, at such times and for such consideration and upon such terms and conditions as the Board may determine. |
| 5.2 |
Subject to the provisions of these Bye-Laws, any shares of the Company held by the Company as treasury shares shall be at the disposal of the Board, which may hold all or any of the shares, dispose of or transfer all or
any of the shares for cash or other consideration, or cancel all or any of the shares. |
| 5.3 |
The Board may in connection with the issue of any shares exercise all powers of paying commission and brokerage conferred or permitted by law. |
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| 5.4 |
Except as ordered by a court of competent jurisdiction or as required by law, no person shall be recognised by the Company as holding any share upon trust and the Company shall not be bound by or required in any way to
recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any share or in any fractional part of a share or (except only as otherwise provided in these Bye-Laws or by law) any other right in respect of any
share except an absolute right to the entirety thereof in the registered holder. |
| 6.1 |
The Company shall be under no obligation to complete and deliver a share certificate unless specifically called upon to do so by the person to whom the shares have been issued. In the case of a share held jointly by
several persons, delivery of a certificate to one of several joint holders shall be sufficient delivery to all. |
| 6.2 |
If a share certificate is defaced, lost or destroyed, it may be replaced without fee but on such terms (if any) as to evidence and indemnity and to payment of the costs and out of pocket expenses of the Company in
investigating such evidence and preparing such indemnity as the Board may think fit and, in case of defacement, on delivery of the old certificate to the Company. |
| 6.3 |
All certificates for share or loan capital or other securities of the Company (other than letters of allotment, scrip certificates and other like documents) shall, except to the extent that the terms and conditions for
the time being relating thereto otherwise provide, be issued under the Seal or signed by a Director, the Secretary or any person authorised by the Board for that purpose. The Board may by resolution determine, either generally or in any particular
case, that any signatures on any such certificates need not be autographic but may be affixed to such certificates by some mechanical means or may be printed thereon or that such certificates need not be signed by any persons. |
| 7.1 |
The Company shall have a first and paramount lien on every share (not being a fully paid share) for all monies, whether presently payable or not, called or payable, at a date fixed by or in accordance with the terms of
issue of such share in respect of such share, and the Company shall also have a first and paramount lien on every share (other than a fully paid share) standing registered in the name of a Shareholder, whether singly or jointly with any other
person, for all the debts and liabilities of such Shareholder or his estate to the Company, whether the same shall have been incurred before or after notice to the Company of any interest of any person other than such Shareholder, and whether the
time for the payment or discharge of the same shall have actually arrived or not, and notwithstanding that the same are joint debts or liabilities of such Shareholder or his estate and any other person, whether a Shareholder or not. The
Company’s lien on a share shall extend to all dividends payable thereon. The Board may at any time, either generally or in any particular case, waive any lien that has arisen or declare any share to be wholly or in part exempt from the
provisions of this Bye-Law. |
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| 7.2 |
The Company may sell, in such manner as the Board may think fit, any share on which the Company has a lien but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the
expiration of fourteen (14) days after a notice in writing, stating and demanding payment of the sum presently payable and giving notice of the intention to sell in default of such payment, has been served on the holder for the time being of
the share. |
| 7.3 |
The net proceeds of sale by the Company of any shares on which it has a lien shall be applied in or towards payment or discharge of the debt or liability in respect of which the lien exists so far as the same is
presently payable, and any residue shall (subject to a like lien for debts or liabilities not presently payable as existed upon the share prior to the sale) be paid to the person who was the holder of the share immediately before such sale. For
giving effect to any such sale, the Board may authorise some person to transfer the share sold to the purchaser thereof. The purchaser shall be registered as the holder of the share and he shall not be bound to see to the application of the purchase
money, nor shall his title to the share be affected by any irregularity or invalidity in the proceedings relating to the sale. |
| 8.1 |
The Board may from time to time make calls upon the Shareholders (for the avoidance of doubt excluding the Company in respect of any nil or partly paid shares held by the Company as treasury shares) in respect of any
monies unpaid on their shares (whether on account of the par value of the shares or by way of premium) and not by the terms of issue thereof made payable at a date fixed by or in accordance with such terms of issue, and each Shareholder shall
(subject to the Company serving upon him at least fourteen (14) days’ notice specifying the time or times and place of payment) pay to the Company at the time or times and place so specified the amount called on his shares. A call may be
revoked or postponed as the Board may determine. |
| 8.2 |
A call may be made payable by instalments and shall be deemed to have been made at the time when the resolution of the Board authorising the call was passed. |
| 8.3 |
The joint holders of a share shall be jointly and severally liable to pay all calls in respect thereof. |
| 8.4 |
If a sum called in respect of the share shall not be paid before or on the day appointed for payment thereof the person from whom the sum is due shall pay interest on the sum from the day appointed for the payment
thereof to the time of actual payment at such rate as the Board may determine, but the Board shall be at liberty to waive payment of such interest wholly or in part. |
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| 8.5 |
Any sum which, by the terms of issue of a share, becomes payable on allotment or at any date fixed by or in accordance with such terms of issue, whether on account of the nominal amount of the share or by way of
premium, shall for all the purposes of these Bye-Laws be deemed to be a call duly made, notified and payable on the date on which, by the terms of issue, the same becomes payable and, in case of non-payment, all the relevant provisions of these
Bye-Laws as to payment of interest, forfeiture or otherwise shall apply as if such sum had become payable by virtue of a call duly made and notified. |
| 8.6 |
The Board may on the issue of shares differentiate between the allottees or holders as to the amount of calls to be paid and the times of payment. |
| 9.1 |
If a Shareholder fails to pay any call or instalment of a call on the day appointed for payment thereof, the Board may at any time thereafter during such time as any part of such call or instalment remains unpaid serve
a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued. |
| 9.2 |
The notice shall name a further day (not being less than fourteen (14) days from the date of the notice) on or before which, and the place where, the payment required by the notice is to be made and shall state
that, in the event of non-payment on or before the day and at the place appointed, the shares in respect of which such call is made or instalment is payable will be liable to be forfeited. The Board may accept the surrender of any share liable to be
forfeited hereunder and, in such case, references in these Bye-Laws to forfeiture shall include surrender. |
| 9.3 |
If the requirements of any such notice as aforesaid are not complied with, any share in respect of which such notice has been given may at any time thereafter, before payment of all calls or instalments and interest due
in respect thereof has been made, be forfeited by a resolution of the Board to that effect. Such forfeiture shall include all dividends declared in respect of the forfeited shares and not actually paid before the forfeiture. |
| 9.4 |
When any share has been forfeited, notice of the forfeiture shall be served upon the person who was before forfeiture the holder of the share but no forfeiture shall be in any manner invalidated by any omission or
neglect to give such notice as aforesaid. |
| 9.5 |
A forfeited share shall be deemed to be the property of the Company and may be sold, re-offered or otherwise disposed of either to the person who was, before forfeiture, the holder thereof or entitled thereto or to any
other person upon such terms and in such manner as the Board shall think fit, and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Board may think fit. |
| 9.6 |
A person whose shares have been forfeited shall thereupon cease to be a Shareholder in respect of the forfeited shares but shall, notwithstanding the forfeiture, remain liable to pay to the Company all monies which at
the date of forfeiture were presently payable by him to the Company in respect of the shares with interest thereon at such rate as the Board may determine from the date of forfeiture until payment, and the Company may enforce payment without being
under any obligation to make any allowance for the value of the shares forfeited. |
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| 9.7 |
An affidavit in writing that the deponent is a Director of the Company or the Secretary and that a share has been duly forfeited on the date stated in the affidavit shall be conclusive evidence of the facts therein
stated as against all persons claiming to be entitled to the share. The Company may receive the consideration (if any) given for the share on the sale, re-allotment or disposition thereof and the Board may authorise some person to transfer the share
to the person to whom the same is sold, re-allotted or disposed of, and he shall thereupon be registered as the holder of the share and shall not be bound to see to the application of the purchase money (if any) nor shall his title to the share be
affected by any irregularity or invalidity in the proceedings relating to the forfeiture, sale, re-allotment or disposal of the share. |
REGISTER OF SHAREHOLDERS
| 10. |
REGISTER OF SHAREHOLDERS |
The Secretary shall establish and maintain the Register at the
Registered Office in the manner prescribed by the Companies Acts. Unless the Board otherwise determines, the Register shall be open to inspection in the manner prescribed by the Companies Acts between 10:00 am and 12:00 noon on every working day.
Unless the Board so determines, no Shareholder or intending Shareholder shall be entitled to have entered in the Register any indication of any trust or any equitable, contingent, future or partial interest in any share or any fractional part of a
share and if any such entry exists or is permitted by the Board it shall not be deemed to abrogate any of the provisions of Bye-Law 5.4.
REGISTER OF DIRECTORS AND OFFICERS
| 11. |
REGISTER OF DIRECTORS AND OFFICERS |
The Secretary shall establish and maintain a
register of the Directors and Officers of the Company as required by the Companies Acts. The register of Directors and Officers shall be open to inspection in the manner prescribed by the Companies Acts between 10:00 am and 12:00 noon on every
working day.
TRANSFER OF SHARES
| 12.1 |
Subject to the Companies Acts and to such of the restrictions contained in these Bye-Laws as may be applicable, any Shareholder may transfer all or any of his shares by an instrument of transfer in the usual common form
or in any other form which the Board may approve. No such instrument shall be required on the redemption of a share or on the purchase by the Company of a share. |
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| 12.2 |
The instrument of transfer of a share shall be signed by or on behalf of the transferor and where any share is not fully-paid, the transferee. The transferor shall be deemed to remain the holder of the share until the
name of the transferee is entered in the Register in respect thereof. All instruments of transfer when registered may be retained by the Company. The Board may, in its absolute discretion and without assigning any reason therefor, decline to
register any transfer of any share which is not a fully-paid share. The Board may also decline to register any transfer unless: |
| |
(a) |
the instrument of transfer is duly stamped (if required by law) and lodged with the Company, accompanied by the certificate for the shares to which it relates, and such other evidence as the Board may reasonably require
to show the right of the transferor to make the transfer, |
| |
(b) |
the instrument of transfer is in respect of only one class of share, and |
| |
(c) |
where applicable, the permission of the Bermuda Monetary Authority with respect thereto has been obtained. |
| 12.3 |
Subject to any directions of the Board from time to time in force, the Secretary may exercise the powers and discretions of the Board under this Bye-Law. |
| 12.4 |
If the Board declines to register a transfer it shall, within three (3) months after the date on which the instrument of transfer was lodged, send to the transferee notice of such refusal. |
| 12.5 |
No fee shall be charged by the Company for registering any transfer, probate, letters of administration, certificate of death or marriage, power of attorney, stop notice, order of court or other instrument relating to
or affecting the title to any share, or otherwise making an entry in the Register relating to any share. |
TRANSMISSION OF
SHARES
| 13. |
TRANSMISSION OF SHARES |
| 13.1 |
In the case of the death of a Shareholder, the survivor or survivors, where the deceased was a joint holder, and the estate representative, where he was sole holder, shall be the only person recognised by the Company as
having any title to his shares; but nothing herein contained shall release the estate of a deceased holder (whether the sole or joint) from any liability in respect of any share held by him solely or jointly with other persons. For the purpose of
this Bye-Law, estate representative means the person to whom probate or letters of administration has or have been granted in Bermuda or, failing any such person, such other person as the Board may in its absolute discretion determine to be
the person recognised by the Company for the purpose of this Bye-Law. |
| 13.2 |
Any person becoming entitled to a share in consequence of the death of a Shareholder or otherwise by operation of applicable law may, subject as
hereafter provided and upon such |
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evidence being produced as may from time to time be required by the Board as to his entitlement, either be registered himself as the holder of the share or elect to have some person nominated by
him registered as the transferee thereof. If the person so becoming entitled elects to be registered himself, he shall deliver or send to the Company a notice in writing signed by him stating that he so elects. If he shall elect to have his nominee
registered, he shall signify his election by signing an instrument of transfer of such share in favour of his nominee. All the limitations, restrictions and provisions of these Bye-Laws relating to the right to transfer and the registration of
transfer of shares shall be applicable to any such notice or instrument of transfer as aforesaid as if the death of the Shareholder or other event giving rise to the transmission had not occurred and the notice or instrument of transfer was an
instrument of transfer signed by such Shareholder. |
| 13.3 |
A person becoming entitled to a share in consequence of the death of a Shareholder or otherwise by operation of applicable law shall (upon such evidence being produced as may from time to time be required by the Board
as to his entitlement) be entitled to receive and may give a discharge for any dividends or other monies payable in respect of the share, but he shall not be entitled in respect of the share to receive notices of or to attend or vote at general
meetings of the Company or, save as aforesaid, to exercise in respect of the share any of the rights or privileges of a Shareholder until he shall have become registered as the holder thereof. The Board may at any time give notice requiring such
person to elect either to be registered himself or to transfer the share and, if the notice is not complied with within sixty (60) days, the Board may thereafter withhold payment of all dividends and other monies payable in respect of the
shares until the requirements of the notice have been complied with. |
| 13.4 |
Subject to any directions of the Board from time to time in force, the Secretary may exercise the powers and discretions of the Board under this Bye-Law. |
SHARE CAPITAL
| 14.1 |
The Company may from time to time increase its capital by such sum to be divided into shares of such par value as the Company by Resolution shall prescribe. |
| 14.2 |
The Company may, by the Resolution increasing the capital, direct that the new shares or any of them shall be offered in the first instance either at par or at a premium or (subject to the provisions of the Companies
Acts) at a discount to all the holders for the time being of shares of any class or classes in proportion to the number of such shares held by them respectively or make any other provision as to the issue of the new shares. |
| 14.3 |
The new shares shall be subject to all the provisions of these Bye-Laws with reference to lien, the payment of calls, forfeiture, transfer, transmission and otherwise. |
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| 15. |
ALTERATION OF CAPITAL |
| 15.1 |
The Company may from time to time by Resolution: |
| |
(a) |
divide its shares into several classes and attach thereto respectively any preferential, deferred, qualified or special rights, privileges or conditions; |
| |
(b) |
consolidate and divide all or any of its share capital into shares of larger par value than its existing shares; |
| |
(c) |
sub-divide its shares or any of them into shares of smaller par value than is fixed by its memorandum, so, however, that in the sub-division the proportion between the amount paid and the amount, if any, unpaid on each
reduced share shall be the same as it was in the case of the share from which the reduced share is derived; |
| |
(d) |
make provision for the issue and allotment of shares which do not carry any voting rights; |
| |
(e) |
cancel shares which, at the date of the passing of the Resolution in that behalf, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the shares so
cancelled; and |
| |
(f) |
change the currency denomination of its share capital. |
| 15.2 |
Where any difficulty arises in regard to any division, consolidation, or sub-division under this Bye-Law, the Board may settle the same as it thinks expedient and, in particular, may arrange for the sale of the shares
representing fractions and the distribution of the net proceeds of sale in due proportion amongst the Shareholders who would have been entitled to the fractions, and for this purpose the Board may authorise some person to transfer the shares
representing fractions to the purchaser thereof, who shall not be bound to see to the application of the purchase money nor shall his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the sale.
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| 15.3 |
Subject to the Companies Acts and to any confirmation or consent required by law or these Bye-Laws, the Company may by Resolution from time to time convert any preference shares into redeemable preference shares.
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| 16.1 |
Subject to the Companies Acts, its memorandum and any confirmation or consent required by law or these Bye-Laws, the Company may from time to time by Resolution authorise the reduction of its issued share capital or any
share premium account in any manner. |
| 16.2 |
In relation to any such reduction, the Company may by Resolution determine the terms upon which such reduction is to be effected including, in the case of a reduction of part only of a class of shares, those shares to
be affected. |
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GENERAL MEETINGS AND RESOLUTIONS IN WRITING
| 17. |
GENERAL MEETINGS AND RESOLUTIONS IN WRITING |
| 17.1 |
Save and to the extent that the Company elects to dispense with the holding of one or more of its annual general meetings in the manner permitted by the Companies Acts, the Board shall convene and the Company shall hold
general meetings as annual general meetings in accordance with the requirements of the Companies Acts at such times and places as the Board shall appoint. The Board may, whenever it thinks fit, and shall, when required by the Companies Acts, convene
general meetings other than annual general meetings which shall be called special general meetings. |
| 17.2 |
Except in the case of the removal of Auditors or Directors, anything which may be done by resolution of the Shareholders in general meeting or by resolution of any class of Shareholders in a separate general meeting may
be done by resolution in writing, signed by the Shareholders (or the holders of such class of shares) who at the date of the notice of the resolution in writing represent the majority of votes that would be required if the resolution had been voted
on at a meeting of the Shareholders. Such resolution in writing may be signed by the Shareholder or its proxy, or in the case of a Shareholder that is a corporation (whether or not a company within the meaning of the Companies Acts) by its
representative on behalf of such Shareholder, in as many counterparts as may be necessary. |
| 17.3 |
Notice of any resolution in writing to be made under this Bye-Law shall be given to all the Shareholders who would be entitled to attend a meeting and vote on the resolution. The requirement to give notice of any
resolution in writing to be made under this Bye-Law to such Shareholders shall be satisfied by giving to those Shareholders a copy of that resolution in writing in the same manner that is required for a notice of a general meeting of the Company at
which the resolution could have been considered, except that the length of the period of notice shall not apply. The date of the notice shall be set out in the copy of the resolution in writing. |
| 17.4 |
The accidental omission to give notice, in accordance with this Bye-Law, of a resolution in writing to, or the non-receipt of such notice by, any person entitled to receive such notice shall not invalidate the passing
of the resolution in writing. |
| 17.5 |
For the purposes of this Bye-Law, the date of the resolution in writing is the date when the resolution in writing is signed by, or on behalf of, the Shareholder who establishes the majority of votes required for the
passing of the resolution in writing and any reference in any enactment to the date of passing of a resolution is, in relation to a resolution in writing made in accordance with this Bye-Law, a reference to such date. |
| 17.6 |
A resolution in writing made in accordance with this Bye-Law is as valid as if it had been passed by the Company in general meeting or, if applicable, by a meeting of the relevant class of Shareholders of the Company,
as the case may be. A resolution in writing made in accordance with this Bye-Law shall constitute minutes for the purposes of the Companies Acts and these Bye-Laws. |
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| 18. |
NOTICE OF GENERAL MEETINGS |
| 18.1 |
An annual general meeting shall be called by not less than five (5) days’ notice in writing and a special general meeting shall be called by not less than five (5) days’ notice in writing. The notice
shall be exclusive of the day on which it is served or deemed to be served and of the day for which it is given, and shall specify the place, day and time of the meeting, and, the nature of the business to be considered. Notice of every general
meeting shall be given in any manner permitted by these Bye-Laws to all Shareholders other than such as, under the provisions of these Bye-Laws or the terms of issue of the shares they hold, are not entitled to receive such notice from the Company
and every Director and to any Resident Representative who or which has delivered a written notice upon the Registered Office requiring that such notice be sent to him or it. |
Notwithstanding that a meeting of the Company is called by shorter notice than that specified in this Bye-Law, it shall be deemed to have been
duly called if it is so agreed:
| |
(a) |
in the case of a meeting called as an annual general meeting, by all the Shareholders entitled to attend and vote thereat; |
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(b) |
in the case of any other meeting, by a majority in number of the Shareholders having the right to attend and vote at the meeting, being a majority together holding not less than ninety-five per cent (95%) in
nominal value of the shares giving that right. |
| 18.2 |
The accidental omission to give notice of a meeting or (in cases where instruments of proxy are sent out with the notice) the accidental omission to send such instrument of proxy to, or the non-receipt of notice of a
meeting or such instrument of proxy by, any person entitled to receive such notice shall not invalidate the proceedings at that meeting. |
| 18.3 |
The Board may cancel or postpone a meeting of the Shareholders after it has been convened and notice of such cancellation or postponement shall be served in accordance with these Bye-Laws upon all Shareholders entitled
to notice of the meeting so cancelled or postponed setting out, where the meeting is postponed to a specific date, notice of the new meeting in accordance with this Bye-Law. |
| 19. |
PROCEEDINGS AT GENERAL MEETINGS |
| 19.1 |
In accordance with the Companies Acts, a general meeting may be held with only one individual present provided that the requirement for a quorum is satisfied. No business shall be transacted at any general meeting
unless a quorum is present when the meeting proceeds to business, but the absence of a quorum shall not preclude the appointment, choice or election of a chairman, which shall not be treated as part of the business of the meeting. Save as otherwise
provided by these Bye-Laws, at least one Shareholder present in person or by proxy and entitled to vote shall be a quorum for all purposes. |
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| 19.2 |
If within five (5) minutes (or such longer time as the chairman of the meeting may determine to wait) after the time appointed for the meeting, a quorum is not present, the meeting, if convened on the requisition
of Shareholders, shall be dissolved. In any other case, it shall stand adjourned to such other day and such other time and place as the chairman of the meeting may determine and at such adjourned meeting one Shareholder present in person or by proxy
(whatever the number of shares held by him) and entitled to vote shall be a quorum. The Company shall give not less than five (5) days’ notice of any meeting adjourned through want of a quorum and such notice shall state that the one
Shareholder present in person or by proxy (whatever the number of shares held by them) and entitled to vote shall be a quorum. |
| 19.3 |
A meeting of the Shareholders or any class thereof may be held by means of such telephone, electronic or other communication facilities (including, without limiting the generality of the foregoing, by telephone, or by
video conferencing) as to permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously, and participation in such a meeting shall constitute presence in person at such meeting. |
| 19.4 |
Each Director, and upon giving the notice referred to in Bye-Law 18.1 above, the Resident Representative, if any, shall be entitled to attend and speak at any general meeting of the Company. |
| 19.5 |
The Board may choose one of their number to preside as chairman at every general meeting. If there is no such chairman, or if at any meeting the chairman is not present within five (5) minutes after the time
appointed for holding the meeting, or is not willing to act as chairman, the Directors present shall choose one of their number to act or if only one Director is present he shall preside as chairman if willing to act. If no Director is present, or
if each of the Directors present declines to take the chair, the persons present and entitled to vote on a poll shall elect one of their number to be chairman. |
| 19.6 |
The chairman of the meeting may, with the consent by resolution of any meeting at which a quorum is present (and shall if so directed by the meeting), adjourn the meeting from time to time and from place to place but no
business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. When a meeting is adjourned for three (3) months or more, notice of the
adjourned meeting shall be given as in the case of an original meeting. Save as expressly provided by these Bye-Laws, it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.
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| 20.1 |
Save where a greater majority is required by the Companies Acts or these Bye-Laws, any question proposed for consideration at any general meeting shall be decided on by a simple majority of votes cast.
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| 20.2 |
At any general meeting, a resolution put to the vote of the meeting shall be decided on a show of hands or by a count of votes received in the form of electronic records, unless (before or on the declaration of the
result of the show of hands or count of votes received as electronic records or on the withdrawal of any other demand for a poll) a poll is demanded by: |
| |
(a) |
the chairman of the meeting; or |
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(b) |
at least three (3) Shareholders present in person or represented by proxy; or |
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(c) |
any Shareholder or Shareholders present in person or represented by proxy and holding between them not less than one tenth (1/10) of the total voting rights of all the Shareholders having the right to vote at such
meeting; or |
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(d) |
a Shareholder or Shareholders present in person or represented by proxy holding shares conferring the right to vote at such meeting, being shares on which an aggregate sum has been paid up equal to not less than one
tenth (1/10) of the total sum paid up on all such shares conferring such right. |
The demand for a poll may be withdrawn
by the person or any of the persons making it at any time prior to the declaration of the result. Unless a poll is so demanded and the demand is not withdrawn, a declaration by the chairman that a resolution has, on a show of hands or count of votes
received as electronic records, been carried or carried unanimously or by a particular majority or not carried by a particular majority or lost shall be final and conclusive, and an entry to that effect in the minute book of the Company shall be
conclusive evidence of the fact without proof of the number or proportion of votes recorded for or against such resolution.
| 20.3 |
If a poll is duly demanded, the result of the poll shall be deemed to be the resolution of the meeting at which the poll is demanded. |
| 20.4 |
A poll demanded on the election of a chairman, or on a question of adjournment, shall be taken forthwith. A poll demanded on any other question shall be taken in such manner and either forthwith or at such time (being
not later than three (3) months after the date of the demand) and place as the chairman shall direct. It shall not be necessary (unless the chairman otherwise directs) for notice to be given of a poll. |
| 20.5 |
The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded and it may be withdrawn at any time before the close
of the meeting or the taking of the poll, whichever is the earlier. |
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| 20.6 |
On a poll, votes may be cast either personally or by proxy. |
| 20.7 |
A person entitled to more than one vote on a poll need not use all his votes or cast all the votes he uses in the same way. |
| 20.8 |
In the case of an equality of votes at a general meeting, whether on a show of hands or count of votes received as electronic records or on a poll, the chairman of such meeting shall not be entitled to a second or
casting vote and the resolution shall fail. |
| 20.9 |
In the case of joint holders of a share, the vote of the senior who tenders a vote, whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose
seniority shall be determined by the order in which the names stand in the Register in respect of the joint holding. |
| 20.10 |
A Shareholder who is a patient for any purpose of any statute or applicable law relating to mental health or in respect of whom an order has been made by any Court having jurisdiction for the protection or management of
the affairs of persons incapable of managing their own affairs may vote, whether on a show of hands or on a poll, by his receiver, committee, curator bonis or other person in the nature of a receiver, committee or curator bonis
appointed by such Court and such receiver, committee, curator bonis or other person may vote on a poll by proxy, and may otherwise act and be treated as such Shareholder for the purpose of general meetings. |
| 20.11 |
No Shareholder shall, unless the Board otherwise determines, be entitled to vote at any general meeting unless all calls or other sums presently payable by him in respect of shares in the Company have been paid.
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(a) |
any objection shall be raised to the qualification of any voter; or, |
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(b) |
any votes have been counted which ought not to have been counted or which might have been rejected; or, |
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(c) |
any votes are not counted which ought to have been counted, |
the objection or error shall not
vitiate the decision of the meeting or adjourned meeting on any resolution unless the same is raised or pointed out at the meeting or, as the case may be, the adjourned meeting at which the vote objected to is given or tendered or at which the error
occurs. Any objection or error shall be referred to the chairman of the meeting and shall only vitiate the decision of the meeting on any resolution if the chairman decides that the same may have affected the decision of the meeting. The decision of
the chairman on such matters shall be final and conclusive.
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| 21. |
PROXIES AND CORPORATE REPRESENTATIVES |
| 21.1 |
The instrument appointing a proxy or corporate representative shall be in writing executed by the appointor or his attorney authorised by him in writing or, if the appointor is a corporation, either under its Seal or
executed by an officer, attorney or other person authorised to sign the same. |
| 21.2 |
Any Shareholder may appoint a proxy or (if a corporation) representative for a specific general meeting, and adjournments thereof, or may appoint a standing proxy or (if a corporation) representative, by serving on the
Company at the Registered Office, or at such place or places as the Board may otherwise specify for the purpose, a proxy or (if a corporation) an authorisation. Any standing proxy or authorisation shall be valid for all general meetings and
adjournments thereof or resolutions in writing, as the case may be, until notice of revocation is received at the Registered Office or at such place or places as the Board may otherwise specify for the purpose. Where a standing proxy or
authorisation exists, its operation shall be deemed to have been suspended at any general meeting or adjournment thereof at which the Shareholder is present or in respect to which the Shareholder has specially appointed a proxy or representative.
The Board may from time to time require such evidence as it shall deem necessary as to the due execution and continuing validity of any standing proxy or authorisation and the operation of any such standing proxy or authorisation shall be deemed to
be suspended until such time as the Board determines that it has received the requested evidence or other evidence satisfactory to it. |
| 21.3 |
Notwithstanding Bye-Law 21.2, a Shareholder may appoint a proxy which shall be irrevocable in accordance with its terms and the holder thereof shall be the only person entitled to vote the relevant shares at any meeting
of the shareholders at which such holder is present. Notice of the appointment of any such proxy shall be given to the Company at its Registered Office, and shall include the name, address, telephone number and electronic mail address of the proxy
holder. The Company shall give to the proxy holder notice of all meetings of Shareholders of the Company and shall be obliged to recognise the holder of such proxy until such time as the holder notifies the Company in writing that the proxy is no
longer in force. |
| 21.4 |
Subject to Bye-Law 21.2 and 21.3, the instrument appointing a proxy or corporate representative together with such other evidence as to its due execution as the Board may from time to time require, shall be delivered at
the Registered Office (or at such place as may be specified in the notice convening the meeting or in any notice of any adjournment or, in either case or the case of a resolution in writing, in any document sent therewith) prior to the holding of
the relevant meeting or adjourned meeting at which the person named in the instrument proposes to vote or, in the case of a poll taken subsequently to the date of a meeting or adjourned meeting, before the time appointed for the taking of the poll,
or, in the case of a resolution in writing, prior to the effective date of the resolution in writing and in default the instrument of proxy or authorisation shall not be treated as valid. |
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| 21.5 |
Subject to Bye-Law 21.2 and 21.3, the decision of the chairman of any general meeting as to the validity of any appointments of a proxy shall be final. |
| 21.6 |
Instruments of proxy or authorisation shall be in any common form or in such other form as the Board may approve and the Board may, if it thinks fit, send out with the notice of any meeting or any resolution in writing
forms of instruments of proxy or authorisation for use at that meeting or in connection with that resolution in writing. The instrument of proxy shall be deemed to confer authority to demand or join in demanding a poll, to speak at the meeting and
to vote on any amendment of a resolution in writing or amendment of a resolution put to the meeting for which it is given as the proxy thinks fit. The instrument of proxy or authorisation shall, unless the contrary is stated therein, be valid as
well for any adjournment of the meeting as for the meeting to which it relates. |
| 21.7 |
A vote given in accordance with the terms of an instrument of proxy or authorisation shall be valid notwithstanding the previous death or unsoundness of mind of the principal, or revocation of the instrument of proxy or
of the corporate authority, provided that no intimation in writing of such death, unsoundness of mind or revocation shall have been received by the Company at the Registered Office (or such other place as may be specified for the delivery of
instruments of proxy or authorisation in the notice convening the meeting or other documents sent therewith) at least one hour before the commencement of the meeting or adjourned meeting, or the taking of the poll, or the day before the effective
date of any resolution in writing at which the instrument of proxy or authorisation is used. |
| 21.8 |
Subject to the Companies Acts, the Board may at its discretion waive any of the provisions of these Bye-Laws related to proxies or authorisations and, in particular, may accept such verbal or other assurances as it
thinks fit as to the right of any person to attend, speak and vote on behalf of any Shareholder at general meetings or to sign resolutions in writing. |
BOARD OF DIRECTORS
| 22. |
APPOINTMENT AND REMOVAL OF DIRECTORS |
| 22.1 |
The number of Directors shall be at least two (2) and not more than six (6) or such numbers in excess thereof as the Company by Resolution may from time to time determine and, subject to the Companies Acts and
these Bye-Laws, the Directors shall be elected or appointed by the Company by Resolution and shall serve for such term as the Company by Resolution may determine, or in the absence of such determination, until the termination of the next annual
general meeting following their appointment. All Directors, upon election or appointment (except upon re-election at an annual general meeting), must provide written acceptance of their appointment, in such form as the Board may think fit, by notice
in writing to the Registered Office within thirty (30) days of their appointment. |
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| 22.2 |
In the event that there shall be, at any time and whether through lapse of term, death, resignation, retirement or otherwise, no Directors in office, the Shareholders entitled to vote at a general meeting where
Directors would be elected or appointed may unanimously give notice to the Secretary appointing one or more Directors to serve until the termination of the next annual general meeting. If no such appointment is made within seven (7) days of the
cessation of the active service of the last remaining Director on the Board, the Secretary shall forthwith call a general meeting for the purpose solely of electing or appointing a Director or Directors, to serve for such term as the Company by
Resolution may determine, or in the absence of such determination, until the next annual general meeting following their appointment. Any Director appointed pursuant to this Bye-Law shall provide written acceptance of their appointment by notice in
writing to the Registered Office within thirty (30) days of their appointment. |
| 22.3 |
The Company may by Resolution increase the maximum number of Directors. Any one or more vacancies in the Board not filled by the Shareholders at any general meeting of the Shareholders shall be deemed casual vacancies
for the purposes of these Bye-Laws. Without prejudice to the power of the Company by Resolution in pursuance of any of the provisions of these Bye-Laws to appoint any person to be a Director, the Board, so long as a quorum of Directors remains in
office, shall have power at any time and from time to time to appoint any person to be a Director so as to fill a casual vacancy. |
| 22.4 |
The Company may in a special general meeting called for that purpose remove a Director, provided notice of any such meeting shall be served upon the Director concerned not less than fourteen (14) days before the
meeting and he shall be entitled to be heard at that meeting. Any vacancy created by the removal of a Director at a special general meeting may be filled at the meeting by the election of another Director in his place or, in the absence of any such
election, by the Board. |
| 23. |
RESIGNATION AND DISQUALIFICATION OF DIRECTORS |
The office of a Director shall be vacated
upon the happening of any of the following events:
| 23.1 |
if he resigns his office by notice in writing delivered to the Registered Office or tendered at a meeting of the Board; |
| 23.2 |
if he becomes of unsound mind or a patient for any purpose of any statute or applicable law relating to mental health and the Board resolves that his office is vacated; |
| 23.3 |
if he becomes bankrupt under the laws of any country or compounds with his creditors; |
| 23.4 |
if he is prohibited by law from being a Director or, in the case of a corporate Director, is otherwise unable to carry on or transact business; or |
| 23.5 |
if he ceases to be a Director by virtue of the Companies Acts or is removed from office pursuant to these Bye-Laws. |
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| 24.1 |
A Director may appoint and remove his own Alternate Director. Any appointment or removal of an Alternate Director by a Director shall be effected by delivery of a written notice of appointment or removal to the
Secretary at the Registered Office, signed by such Director, and such notice shall be effective immediately upon receipt or on any later date specified in that notice. Any Alternate Director may be removed by resolution of the Board. Subject to
aforesaid, the office of Alternate Director shall continue until the next annual election of Directors or, if earlier, the date on which the relevant Director ceases to be a Director. An Alternate Director may also be a Director in his own right and
may act as alternate to more than one Director. |
| 24.2 |
An Alternate Director shall be entitled to receive notices of all meetings of Directors, to attend, be counted in the quorum and vote at any such meeting at which any Director to whom he is alternate is not personally
present, and generally to perform all the functions of any Director to whom he is alternate in his absence. |
| 24.3 |
Every person acting as an Alternate Director shall (except as regards powers to appoint an alternate and remuneration) be subject in all respects to the provisions of these Bye-Laws relating to Directors and shall alone
be responsible to the Company for his acts and defaults and shall not be deemed to be the agent of or for any Director for whom he is alternate. An Alternate Director may be paid expenses and shall be entitled to be indemnified by the Company to the
same extent mutatis mutandis as if he were a Director. Every person acting as an Alternate Director shall have one vote for each Director for whom he acts as alternate (in addition to his own vote if he is also a Director). The signature of
an Alternate Director to any resolution in writing of the Board or a committee of the Board shall, unless the terms of his appointment provides to the contrary, be as effective as the signature of the Director or Directors to whom he is alternate.
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| 25. |
DIRECTORS’ FEES AND ADDITIONAL REMUNERATION AND EXPENSES |
The amount, if any, of
Directors’ fees shall from time to time be determined by the Company by Resolution or in the absence of such a determination, by the Board. Unless otherwise determined to the contrary, such fees shall be deemed to accrue from day-to-day. Each
Director may be paid his reasonable travel, hotel and incidental expenses for attending and returning from meetings of the Board or committees constituted pursuant to these Bye-Laws or general meetings and shall be paid all expenses properly and
reasonably incurred by him in the conduct of the Company’s business or in the discharge of his duties as a Director. Any Director who, by request, goes or resides abroad for any purposes of the Company or who performs services which in the
opinion of the Board go beyond the ordinary duties of a Director may be paid such extra remuneration (whether by way of salary, commission, participation in profits or otherwise) as the Board may determine, and such extra remuneration shall be in
addition to any remuneration provided for by or pursuant to any other Bye-Law.
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| 26.1 |
A Director may hold any other office or place of profit with the Company (except that of Auditor) in conjunction with his office of Director for such period and upon such terms as the Board may determine, and may be
paid such extra remuneration therefor (whether by way of salary, commission, participation in profits or otherwise) as the Board may determine, and such extra remuneration shall be in addition to any remuneration provided for by or pursuant to any
other Bye-Law. |
| 26.2 |
A Director may act by himself or his firm in a professional capacity for the Company (other than as Auditor) and he or his firm shall be entitled to remuneration for professional services as if he were not a Director.
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| 26.3 |
Subject to the provisions of the Companies Acts, a Director may notwithstanding his office be a party to, or otherwise interested in, any transaction or arrangement with the Company or in which the Company is otherwise
interested; and be a director or other officer of, or employed by, or a party to any transaction or arrangement with, or otherwise interested in, any body corporate promoted by the Company or in which the Company is interested. The Board may also
cause the voting power conferred by the shares in any other company held or owned by the Company to be exercised in such manner in all respects as it thinks fit, including the exercise thereof in favour of any resolution appointing the Directors or
any of them to be directors or officers of such other company, or voting or providing for the payment of remuneration to the directors or officers of such other company. |
| 26.4 |
So long as, where it is necessary, he declares the nature of his interest at the first opportunity at a meeting of the Board or by writing to the Directors as required by the Companies Acts, a Director shall not by
reason of his office be accountable to the Company for any benefit which he derives from any office or employment to which these Bye-Laws allow him to be appointed or from any transaction or arrangement in which these Bye-Laws allow him to be
interested, and no such transaction or arrangement shall be liable to be avoided on the ground of any interest or benefit. |
| 26.5 |
Subject to the Companies Acts and any further disclosure required thereby, a general notice to the Directors by a Director or Officer declaring that he is a director or officer or has an interest in a person and is to
be regarded as interested in any transaction or arrangement made with that person, shall be a sufficient declaration of interest in relation to any transaction or arrangement so made. |
POWERS AND DUTIES OF THE BOARD
| 27. |
POWERS AND DUTIES OF THE BOARD |
| 27.1 |
Subject to the provisions of the Companies Acts and these Bye-Laws, the Board shall manage the business of the Company and may pay all expenses
incurred in promoting and incorporating the Company and may exercise all the powers of the Company. No alteration of |
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these Bye-Laws and no such direction shall invalidate any prior act of the Board which would have been valid if that alteration had not been made or that direction had not been given. The powers
given by this Bye-Law shall not be limited by any special power given to the Board by these Bye-Laws and a meeting of the Board at which a quorum is present shall be competent to exercise all the powers, authorities and discretions for the time
being vested in or exercisable by the Board. |
| 27.2 |
The Board may exercise all the powers of the Company except those powers that are required by the Companies Acts or these Bye-Laws to be exercised by the Shareholders. |
| 27.3 |
The Board on behalf of the Company may provide benefits, whether by the payment of gratuities or pensions or otherwise, for any person including any Director or former Director who has held any executive office or
employment with the Company or with any body corporate which is or has been a subsidiary or affiliate of the Company or a predecessor in the business of the Company or of any such subsidiary or affiliate, and to any member of his family or any
person who is or was dependent on him, and may contribute to any fund and pay premiums for the purchase or provision of any such gratuity, pension or other benefit, or for the insurance of any such person. |
| 27.4 |
The Board may from time to time appoint one or more of its body to be a managing director, joint managing director or an assistant managing director or to hold any other employment or executive office with the Company
for such period and upon such terms as the Board may determine and may revoke or terminate any such appointments. Any such revocation or termination as aforesaid shall be without prejudice to any claim for damages that such Director may have against
the Company or the Company may have against such Director for any breach of any contract of service between him and the Company which may be involved in such revocation or termination. Any person so appointed shall receive such remuneration (if any)
(whether by way of salary, commission, participation in profits or otherwise) as the Board may determine, and either in addition to or in lieu of his remuneration as a Director. |
| 28. |
DELEGATION OF THE BOARD’S POWERS |
| 28.1 |
The Board may by power of attorney appoint any company, firm or person or any fluctuating body of persons, whether nominated directly or indirectly by the Board, to be the attorney or attorneys of the Company for such
purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Board under these Bye-Laws) and for such period and subject to such conditions as it may think fit, and any such power of attorney may
contain such provisions for the protection and convenience of persons dealing with any such attorney and of such attorney as the Board may think fit, and may also authorise any such attorney to sub-delegate all or any of the powers, authorities and
discretions vested in him. Such attorney may, if so authorised by the power of attorney, execute any deed, instrument or other document on behalf of the Company. |
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| 28.2 |
The Board may entrust to and confer upon any Director, Officer or, without prejudice to the provisions of Bye-Law 28.3, other person any of the powers, authorities and discretions exercisable by it upon such terms and
conditions with such restrictions as it thinks fit, and either collaterally with, or to the exclusion of, its own powers, authorities and discretions, and may from time to time revoke or vary all or any of such powers, authorities and discretions,
but no person dealing in good faith and without notice of such revocation or variation shall be affected thereby. |
| 28.3 |
The Board may delegate any of its powers, authorities and discretions to committees, consisting of such person or persons (whether a member or members of its body or not) as it thinks fit. Any committee so formed shall,
in the exercise of the powers, authorities and discretions so delegated, and in conducting its proceedings conform to any regulations which may be imposed upon it by the Board. If no regulations are imposed by the Board the proceedings of a
committee with two (2) or more members shall be, as far as is practicable, governed by the Bye-Laws regulating the proceedings of the Board. |
| 29. |
PROCEEDINGS OF THE BOARD |
| 29.1 |
The Board may meet for the despatch of business, adjourn and otherwise regulate its meetings as it thinks fit. Questions arising at any meeting shall be determined by a majority of votes. In the case of an equality of
votes, the motion shall be deemed to have been lost. A Director may, and the Secretary on the requisition of a Director shall, at any time summon a meeting of the Board. |
| 29.2 |
Notice of a meeting of the Board may be given to a Director by word of mouth or in any manner permitted by these Bye-Laws. A Director may retrospectively waive the requirement for notice of any meeting by consenting in
writing to the business conducted at the meeting. |
| 29.3 |
The quorum necessary for the transaction of the business of the Board may be fixed by the Board and, unless so fixed at any other number, shall be two (2) persons. Any Director who ceases to be a Director at a
meeting of the Board may continue to be present and to act as a Director and be counted in the quorum until the termination of the meeting if no other Director objects and if otherwise a quorum of Directors would not be present. |
| 29.4 |
A Director who to his knowledge is in any way, whether directly or indirectly, interested in a contract or proposed contract, transaction or arrangement with the Company and has complied with the provisions of the
Companies Acts and these Bye-Laws with regard to disclosure of his interest shall be entitled to vote in respect of any contract, transaction or arrangement in which he is so interested and if he shall do so his vote shall be counted, and he shall
be taken into account in ascertaining whether a quorum is present. |
| 29.5 |
The Resident Representative shall, upon delivering written notice of an address for the purposes of receipt of notice to the Registered Office, be entitled to receive notice of, attend and be heard at, and to receive
minutes of all meetings of the Board. |
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| 29.6 |
So long as a quorum of Directors remains in office, the continuing Directors may act notwithstanding any vacancy in the Board but, if no such quorum remains, the continuing Directors or a sole continuing Director may
act only for the purpose of calling a general meeting. |
| 29.7 |
The Board may choose one of their number to preside as chairman at every meeting of the Board. If there is no such chairman, or if at any meeting the chairman is not present within five (5) minutes after the time
appointed for holding the meeting, or is not willing to act as chairman, the Directors present may choose one of their number to be chairman of the meeting. |
| 29.8 |
The meetings and proceedings of any committee consisting of two (2) or more members shall be governed by the provisions contained in these Bye-Laws for regulating the meetings and proceedings of the Board so far as
the same are applicable and are not superseded by any regulations imposed by the Board. |
| 29.9 |
A resolution in writing signed by all the Directors for the time being entitled to receive notice of a meeting of the Board (or by an Alternate Director, as provided for in these Bye-Laws) or by all the members of a
committee for the time being shall be as valid and effectual as a resolution passed at a meeting of the Board or, as the case may be, of such committee duly called and constituted. Such resolution may be contained in one document or in several
documents in the like form each signed by one or more of the Directors or members of the committee concerned. |
| 29.10 |
A meeting of the Board or a committee appointed by the Board may be held by means of such telephone, electronic or other communication facilities (including, without limiting the generality of the foregoing, by
telephone or by video conferencing) as permit all persons participating in the meeting to communicate with each other simultaneously and instantaneously and participation in such a meeting shall constitute presence in person at such meeting. Such a
meeting shall be deemed to take place where the largest group of those Directors participating in the meeting are physically assembled, or, if there is no such group, where the chairman of the meeting then is. |
| 29.11 |
All acts done by the Board or by any committee or by any person acting as a Director or member of a committee or any person duly authorised by the Board or any committee shall, notwithstanding that it is afterwards
discovered that there was some defect in the appointment of any member of the Board or such committee or person acting as aforesaid or that they or any of them were disqualified or had vacated their office, be as valid as if every such person had
been duly appointed and was qualified and had continued to be a Director, member of such committee or person so authorised. |
| 29.12 |
If the Company has elected to have a sole Director, the provisions contained in this Bye-Law for meetings of the Directors do not apply and such sole
Director has full power to represent and act for the Company in all matters as are not by the Companies Acts, its memorandum or |
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the Bye-Laws required to be exercised by the Shareholders. In lieu of minutes of a meeting, the sole Director shall record in writing and sign a note or memorandum of all matters requiring a
resolution of Directors. Such a note or memorandum constitutes sufficient evidence of such resolution for all purposes. |
OFFICERS
| 30.1 |
The Officers of the Company, who may or may not be Directors, may be appointed by the Board at any time. Any person appointed pursuant to this Bye-Law shall hold office for such period and upon such terms as the Board
may determine and the Board may revoke or terminate any such appointment. Any such revocation or termination shall be without prejudice to any claim for damages that such Officer may have against the Company or the Company may have against such
Officer for any breach of any contract of service between him and the Company which may be involved in such revocation or termination. Save as provided in the Companies Acts or these Bye-Laws, the powers and duties of the Officers of the Company
shall be such (if any) as are determined from time to time by the Board. |
| 30.2 |
The provisions of these Bye-Laws as to resignation and disqualification of Directors shall mutatis mutandis apply to the resignation and disqualification of Officers. |
MINUTES
| 31.1 |
The Board shall cause minutes to be made and books kept for the purpose of recording: |
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(a) |
all appointments of Officers made by the Board; |
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(b) |
the names of the Directors and other persons (if any) present at each meeting of the Board and of any committee; and |
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(c) |
all proceedings at meetings of the Company, of the holders of any class of shares in the Company, of the Board and of committees appointed by the Board or the Shareholders. |
| 31.2 |
Shareholders shall only be entitled to see the register of Directors and Officers, the Register, the financial information provided for in Bye-Law 38.3 and the minutes of meetings of the Shareholders of the Company.
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SECRETARY AND RESIDENT REPRESENTATIVE
| 32. |
SECRETARY AND RESIDENT REPRESENTATIVE |
| 32.1 |
The Secretary (including one or more deputy or assistant secretaries) and, if required, the Resident Representative, shall be appointed by the Board at such remuneration (if any) and upon such terms as it may think fit
and any Secretary and Resident Representative so appointed may be removed by the Board. The duties of the Secretary and the duties of the Resident Representative shall be those prescribed by the Companies Acts together with such other duties as
shall from time to time be prescribed by the Board. |
| 32.2 |
A provision of the Companies Acts or these Bye-Laws requiring or authorising a thing to be done by or to a Director and the Secretary shall not be satisfied by its being done by or to the same person acting both as
Director and as, or in the place of, the Secretary. |
THE SEAL
| 33.1 |
The Board may authorise the production of a common seal of the Company and one or more duplicate common seals of the Company, which shall consist of a circular device with the name of the Company around the outer margin
thereof and the country and year of registration in Bermuda across the centre thereof. |
| 33.2 |
Any document required to be under seal or executed as a deed on behalf of the Company may be: |
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(a) |
executed under the Seal in accordance with these Bye-Laws; or |
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(b) |
signed or executed by any person authorised by the Board for that purpose, without the use of the Seal. |
| 33.3 |
The Board shall provide for the custody of every Seal. A Seal shall only be used by authority of the Board or of a committee constituted by the Board. Subject to these Bye-Laws, any instrument to which a Seal is affixed
shall be attested by the signature of: |
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(c) |
any one person authorised by the Board for that purpose. |
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DIVIDENDS AND OTHER PAYMENTS
| 34. |
DIVIDENDS AND OTHER PAYMENTS |
| 34.1 |
The Board may from time to time declare dividends or distributions out of contributed surplus to be paid to the Shareholders according to their rights and interests, including such interim dividends as appear to the
Board to be justified by the position of the Company. The Board, in its discretion, may determine that any dividend shall be paid in cash or shall be satisfied, subject to Bye-Law 36, in paying up in full shares in the Company to be issued to the
Shareholders credited as fully paid or partly paid or partly in one way and partly the other. The Board may also pay any fixed cash dividend which is payable on any shares of the Company half yearly or on such other dates, whenever the position of
the Company, in the opinion of the Board, justifies such payment. |
| 34.2 |
Except insofar as the rights attaching to, or the terms of issue of, any share otherwise provide: |
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(a) |
all dividends or distributions out of contributed surplus may be declared and paid according to the amounts paid up on the shares in respect of which the dividend or distribution is paid, and an amount paid up on a
share in advance of calls may be treated for the purpose of this Bye-Law as paid-up on the share; |
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(b) |
dividends or distributions out of contributed surplus may be apportioned and paid pro rata according to the amounts paid-up on the shares during any portion or portions of the period in respect of which the dividend or
distribution is paid. |
| 34.3 |
The Board may deduct from any dividend, distribution or other monies payable to a Shareholder by the Company on or in respect of any shares all sums of money (if any) presently payable by him to the Company on account
of calls or otherwise in respect of shares of the Company. |
| 34.4 |
No dividend, distribution or other monies payable by the Company on or in respect of any share shall bear interest against the Company. |
| 34.5 |
Any dividend, distribution or interest, or part thereof payable in cash, or any other sum payable in cash to the holder of shares may be paid by cheque or warrant sent through the post or by courier addressed to the
holder at his address in the Register or, in the case of joint holders, addressed to the holder whose name stands first in the Register in respect of the shares at his registered address as appearing in the Register or addressed to such person at
such address as the holder or joint holders may in writing direct. Every such cheque or warrant shall, unless the holder or joint holders otherwise direct, be made payable to the order of the holder or, in the case of joint holders, to the order of
the holder whose name stands first in the Register in respect of such shares, and shall be sent at his or their risk and payment of the cheque or warrant by the bank on which it is drawn shall constitute a good discharge to the Company. Any one of
two (2) or more joint holders may give effectual receipts for any dividends, distributions or other monies payable or property distributable in respect of the shares held by such joint holders. |
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| 34.6 |
Any dividend or distribution out of contributed surplus unclaimed for a period of six (6) years from the date of declaration of such dividend or distribution shall be forfeited and shall revert to the Company and
the payment by the Board of any unclaimed dividend, distribution, interest or other sum payable on or in respect of the share into a separate account shall not constitute the Company a trustee in respect thereof. |
| 34.7 |
The Board may also, in addition to its other powers, direct payment or satisfaction of any dividend or distribution out of contributed surplus wholly or in part by the distribution of specific assets, and in particular
of paid-up shares or debentures of any other company, and where any difficulty arises in regard to such distribution or dividend, the Board may settle it as it thinks expedient, and in particular, may authorise any person to sell and transfer any
fractions or may ignore fractions altogether, and may fix the value for distribution or dividend purposes of any such specific assets and may determine that cash payments shall be made to any Shareholders upon the footing of the values so fixed in
order to secure equality of distribution and may vest any such specific assets in trustees as may seem expedient to the Board, provided that such dividend or distribution may not be satisfied by the distribution of any partly paid shares or
debentures of any company without the sanction of a Resolution. |
The Board may, before declaring any dividend or distribution out of
contributed surplus, set aside such sums as it thinks proper as reserves which shall, at the discretion of the Board, be applicable for any purpose of the Company and pending such application may, also at such discretion, either be employed in the
business of the Company or be invested in such investments as the Board may from time to time think fit. The Board may also without placing the same to reserve carry forward any sums which it may think it prudent not to distribute.
CAPITALISATION OF PROFITS
| 36. |
CAPITALISATION OF PROFITS |
| 36.1 |
The Board may from time to time resolve to capitalise all or any part of any amount for the time being standing to the credit of any reserve or fund which is available for distribution or to the credit of any share
premium account and accordingly that such amount be set free for distribution amongst the Shareholders or any class of Shareholders who would be entitled thereto if distributed by way of dividend and in the same proportions, on the footing that the
same be not paid in cash but be applied either in or towards paying up amounts for the time being unpaid on any shares in the Company held by such Shareholders respectively or in payment up in full of unissued shares, debentures or other obligations
of the Company, to be allotted and distributed credited as fully paid amongst such Shareholders, or partly in one way and partly in the other, provided that for the purpose of this Bye-Law, a share premium account may be applied only in paying up of
unissued shares to be issued to such Shareholders credited as fully paid. |
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| 36.2 |
Where any difficulty arises in regard to any distribution under this Bye-Law, the Board may settle the same as it thinks expedient and, in particular, may authorise any person to sell and transfer any fractions or may
resolve that the distribution should be as nearly as may be practicable in the correct proportion but not exactly so or may ignore fractions altogether, and may determine that cash payments should be made to any Shareholders in order to adjust the
rights of all parties, as may seem expedient to the Board. The Board may appoint any person to sign on behalf of the persons entitled to participate in the distribution any contract necessary or desirable for giving effect thereto and such
appointment shall be effective and binding upon the Shareholders. |
RECORD DATES
Notwithstanding any other provisions of these Bye-Laws, the Company may by
Resolution or the Board may fix any date as the record date for any dividend, distribution, allotment or issue and for the purpose of identifying the persons entitled to receive notices of any general meeting and to vote at any general meeting. Any
such record date may be on or at any time before or after any date on which such dividend, distribution, allotment or issue is declared, paid or made or such notice is despatched.
ACCOUNTING RECORDS
| 38.1 |
The Board shall cause to be kept accounting records sufficient to give a true and fair view of the state of the Company’s affairs and to show and explain its transactions, in accordance with the Companies Acts.
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| 38.2 |
The records of account shall be kept at the Registered Office or at such other place or places as the Board thinks fit, and shall at all times be open to inspection by the Directors, PROVIDED that if the records of
account are kept at some place outside Bermuda, there shall be kept at an office of the Company in Bermuda such records as will enable the Directors to ascertain with reasonable accuracy the financial position of the Company at the end of each three
(3) month period. No Shareholder (other than an Officer of the Company) shall have any right to inspect any accounting record or book or document of the Company except as conferred by law or authorised by the Board or by Resolution.
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| 38.3 |
A copy of every balance sheet and statement of income and expenditure, including every document required by law to be annexed thereto, which is to be laid before the Company in general meeting, together with a copy of
the Auditors’ report, shall be sent to each person entitled thereto in accordance with the requirements of the Companies Acts. |
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AUDIT
Save and to the extent that an audit is waived in the manner permitted by the
Companies Acts, Auditors shall be appointed and their duties regulated in accordance with the Companies Acts, any other applicable law and such requirements not inconsistent with the Companies Acts as the Board may from time to time determine.
SERVICE OF NOTICES AND OTHER DOCUMENTS
| 40. |
SERVICE OF NOTICES AND OTHER DOCUMENTS |
| 40.1 |
Any notice or other document (including but not limited to a share certificate, any notice of a general meeting of the Company, any instrument of proxy and any document to be sent in accordance with Bye-Law 38.3) may be
sent to, served on or delivered to any Shareholder by the Company |
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(b) |
by sending it through the post (by airmail where applicable) in a pre-paid letter addressed to such Shareholder at his address as appearing in the Register; |
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(c) |
by sending it by courier to or leaving it at the Shareholder’s address appearing in the Register; |
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(d) |
where applicable, by sending it by email or facsimile or other mode of representing or reproducing words in a legible and non-transitory form or by sending an electronic record of it by electronic means, in each case to
an address or number supplied by such Shareholder for the purposes of communication in such manner; or |
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(e) |
by publication of an electronic record of it on a website and notification of such publication (which shall include the address of the website, the place on the website where the document may be found, and how the
document may be accessed on the website) by any of the methods set out in paragraphs (a), (b), (c) or (d) of this Bye-Law, in accordance with the Companies Acts. |
In the case of joint holders of a share, service or delivery of any notice or other document on or to one of the joint holders shall for all
purposes be deemed as sufficient service on or delivery to all the joint holders.
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| 40.2 |
Any notice or other document shall be deemed to have been served on or delivered to any Shareholder by the Company |
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(a) |
if sent by personal delivery, at the time of delivery; |
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(b) |
if sent by post, forty-eight (48) hours after it was put in the post; |
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(c) |
if sent by courier or facsimile, twenty-four (24) hours after sending; |
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(d) |
if sent by email or other mode of representing or reproducing words in a legible and non-transitory form or as an electronic record by electronic means, twelve (12) hours after sending; or |
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(e) |
if published as an electronic record on a website, at the time that the notification of such publication shall be deemed to have been delivered to such Shareholder, |
and in proving such service or delivery, it shall be sufficient to prove that the notice or document was properly addressed and stamped and put
in the post, published on a website in accordance with the Companies Acts and the provisions of these Bye-Laws, or sent by courier, facsimile, email or as an electronic record by electronic means, as the case may be, in accordance with these
Bye-Laws.
Each Shareholder and each person becoming a Shareholder subsequent to the adoption of these Bye-Laws, by virtue of its holding
or its acquisition and continued holding of a share, as applicable, shall be deemed to have acknowledged and agreed that any notice or other document (excluding a share certificate) may be provided by the Company by way of accessing them on a
website instead of being provided by other means.
| 40.3 |
Any notice or other document delivered, sent or given to a Shareholder in any manner permitted by these Bye-Laws shall, notwithstanding that such Shareholder is then dead or bankrupt or that any other event has
occurred, and whether or not the Company has notice of the death or bankruptcy or other event, be deemed to have been duly served or delivered in respect of any share registered in the name of such Shareholder as sole or joint holder unless his name
shall, at the time of the service or delivery of the notice or document, have been removed from the Register as the holder of the share, and such service or delivery shall for all purposes be deemed as sufficient service or delivery of such notice
or document on all persons interested (whether jointly with or as claiming through or under him) in the share. |
| 40.4 |
Save as otherwise provided, the provisions of these Bye-Laws as to service of notices and other documents on Shareholders shall mutatis mutandis apply to service or delivery of notices and other documents to the
Company or any Director, Alternate Director or Resident Representative pursuant to these Bye-Laws. |
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WINDING UP
If the Company shall be wound up, the liquidator may, with the sanction of a
Resolution of the Company and any other sanction required by the Companies Acts, divide amongst the Shareholders in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or
not) and may for such purposes set such values as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Shareholders or different classes of Shareholders. The liquidator
may, with the like sanction, vest the whole or any part of such assets in trustees upon such trust for the benefit of the contributories as the liquidator, with the like sanction, shall think fit, but so that no Shareholder shall be compelled to
accept any shares or other assets upon which there is any liability.
INDEMNITY
| 42.1 |
Subject to the proviso below, every Indemnified Person shall be indemnified and held harmless out of the assets of the Company against all liabilities, loss, damage or expense (including but not limited to liabilities
under contract, tort and statute or any applicable foreign law or regulation and all reasonable legal and other costs including defence costs incurred in defending any legal proceedings whether civil or criminal and expenses properly payable)
incurred or suffered by him or by reason of any act done, conceived in or omitted in the conduct of the Company’s business or in the discharge of his duties and the indemnity contained in this Bye-Law shall extend to any Indemnified Person
acting in any office or trust in the reasonable belief that he has been appointed or elected to such office or trust notwithstanding any defect in such appointment or election PROVIDED ALWAYS that the indemnity contained in this Bye-Law shall not
extend to any matter which would render it void pursuant to the Companies Acts. |
| 42.2 |
No Indemnified Person shall be liable to the Company for the acts, defaults or omissions of any other Indemnified Person. |
| 42.3 |
To the extent that any Indemnified Person is entitled to claim an indemnity pursuant to these Bye-Laws in respect of amounts paid or discharged by him, the relevant indemnity shall take effect as an obligation of the
Company to reimburse the person making such payment or effecting such discharge. |
| 42.4 |
Each Shareholder and the Company agree to waive any claim or right of action he or it may at any time have, whether individually or by or in the right of the Company, against any Indemnified Person on account of any
action taken by such Indemnified Person or the failure of such Indemnified Person to take any action in the performance of his duties with or for the Company PROVIDED HOWEVER that such waiver shall not apply to any claims or rights of action arising
out of the fraud of such Indemnified Person or to recover any gain, personal profit or advantage to which such Indemnified Person is not legally entitled. |
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| 42.5 |
The Company shall advance moneys to any Indemnified Person for the costs, charges, and expenses incurred by the Indemnified Person in defending any civil or criminal proceedings against them, on condition and receipt of
an undertaking in a form satisfactory to the Company that the Indemnified Person shall repay such portion of the advance attributable to any claim of fraud or dishonesty if such a claim is proved against the Indemnified Person. |
| 42.6 |
The advance of moneys shall not be paid unless the advance is duly authorised upon a determination that the indemnification of the Indemnified Person was appropriate because the Indemnified Person has met the standard
of conduct which entitles the Indemnified Person to indemnification and further the determination referred to above must be made by a majority vote of the Board at a meeting duly constituted by a quorum of Directors not party to the proceedings in
respect of which the indemnification is, or would be, claimed; or, in the case such meeting cannot be constituted by lack of disinterested quorum, by an independent third party; or, alternatively, by a majority vote of the Shareholders.
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AMALGAMATION AND MERGER
| 43. |
AMALGAMATION AND MERGER |
Any resolution proposed for consideration at any general
meeting to approve the amalgamation or merger of the Company with any other company, wherever incorporated, shall require the approval of a simple majority of votes cast at such meeting and the quorum for such meeting shall be that required in
Bye-Law 19.1 and a poll may be demanded in respect of such resolution in accordance with the provisions of Bye-Law 20.2.
CONTINUATION
Subject to the Companies Acts, the Board may approve the discontinuation
of the Company in Bermuda and the continuation of the Company in a jurisdiction outside Bermuda. The Board, having resolved to approve the discontinuation of the Company, may further resolve not to proceed with any application to discontinue the
Company in Bermuda or may vary such application as it sees fit.
ALTERATION OF BYE-LAWS
| 45. |
ALTERATION OF BYE-LAWS |
These Bye-Laws may be amended from time to time by resolution of
the Board, but subject to approval by Resolution.
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Exhibit 10.1
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
This CONSENT AND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of March 2, 2015, is entered into by
and among PLATINUM UNDERWRITERS HOLDINGS, LTD., a Bermuda exempted company (“Platinum Holdings”), the subsidiaries of Platinum Holdings party hereto (the “Subsidiary Credit Parties”), the Lenders party
hereto, and WELLS FARGO BANK, NATIONAL ASSOCIATION, as administrative agent (the “Administrative Agent”).
RECITALS
A. Platinum
Holdings, the Subsidiary Credit Parties, the Lenders and the Administrative Agent are parties to a Third Amended and Restated Credit Agreement, dated as of April 9, 2014 (as amended, amended and restated, supplemented or otherwise modified from
time to time, the “Credit Agreement”), pursuant to which the Lenders party thereto have made available to the Credit Parties a revolving credit facility in the aggregate principal amount of $300,000,000 for the making of revolving
loans and the issuance of standby letters of credit. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.
B. Platinum Holdings has entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated as of November 23,
2014, with RenaissanceRe Holdings Ltd., a Bermuda exempted company (“RenRe Holdings”), and Port Holdings Ltd., a Bermuda exempted company and a wholly owned subsidiary of RenRe Holdings (“Port Holdings”), pursuant
to which Platinum Holdings will merge with Port Holdings, with Platinum Holdings being the surviving entity and becoming a wholly owned subsidiary of RenRe Holdings (the “Merger”).
C. The Credit Parties have requested that (i) the Lenders party hereto (the “Required Lenders”) consent to the Merger
and waive any noncompliance with Sections 8.1 and 9.1(m) of the Credit Agreement that would result from the Merger, (ii) the Credit Agreement be amended, effective upon the consummation of the Merger, to, among other things, (a) terminate
the Commitments of the Lenders to make Loans, (b) reduce the aggregate Commitments of the Lenders to Issue and/or participate in Letters of Credit to $100,000,000 and (c) to make certain other amendments to the Credit Agreement.
D. The Administrative Agent and the Required Lenders are willing to consent to the Merger and to amend the Credit Agreement on the terms and
conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
LIMITED CONSENT
The
Required Lenders hereby consent to the Merger and waive any Default or Event of Default under Section 8.1 and Section 9.1(m) of the Credit Agreement that would otherwise result from the Merger; provided that, the Merger shall have
been consummated substantially in
accordance with the terms of the Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement
that are material and adverse to the Lenders or the Administrative Agent as reasonably determined by the Administrative Agent, without the prior consent of the Required Lenders (such consent not to be unreasonably withheld, delayed or conditioned).
ARTICLE II
AMENDMENTS TO CREDIT AGREEMENT
2.1 Amendments to the Credit Agreement. Effective upon the Amendment Effective Date (as defined below), the Credit Agreement shall be
automatically amended as follows.
(a) Termination of Revolving Loan Sublimit. The Commitments of the Lenders to make Loans to the
Borrowers pursuant to Section 2.1 of the Credit Agreement shall be terminated and the definition of “Revolving Loan Sublimit” is hereby amended by deleting the figure “$100,000,000” and substituting therefor the figure
“$0.” For the avoidance of doubt, the Fronting Bank’s and the Lenders’ Commitments to Issue and/or participate in Letters of Credit pursuant to Section 2.1 of the Credit Agreement shall remain in full force and effect, as
reduced pursuant to Section 2.1(b) of this Amendment.
(b) Reduction of Commitments. The aggregate Commitments of the
Lenders under the Credit Agreement to Issue and/or participate in Letters of Credit shall be reduced to $100,000,000. Schedule 1.1(a) of the Credit Agreement is hereby replaced with Schedule 1.1(a) attached hereto.
(c) Amendments to Defined Terms.
(i) The defined term “Credit Documents” shall be amended and restated in its entirety as follows.
“Credit Documents” means this Agreement, the Consent and Amendment, the Letter of Credit Documents, the Fee Letters, the
Security Agreement, all of the other Security Documents, the RenRe Holdings Guaranty and all other agreements, instruments, documents and certificates now or hereafter executed and delivered to the Administrative Agent or any Lender by or on behalf
of any Credit Party with respect to this Agreement; but specifically excluding any Hedge Agreement to which Platinum Holdings or any of its Subsidiaries and any Hedge Party are parties.
(ii) The following defined terms shall be added to Section 1.1 of the Credit Agreement in appropriate alphabetical order.
“Amendment Effective Date” has the meaning set forth in the Consent and Amendment.
2
“Consent and Amendment” means the Consent and Amendment, dated as of
March 2, 2015, between Platinum Holdings, the Subsidiary Credit Parties, the Lenders party thereto and the Administrative Agent.
“RenRe Holdings” means RenaissanceRe Holdings Ltd., a Bermuda exempted company.
“RenRe Holdings Credit Agreement” means the Credit Agreement, dated as of May 17, 2012, among RenRe Holdings, the lenders
party thereto and Wells Fargo Bank, National Association, as administrative agent.
“RenRe Holdings Guaranty” means the
Guaranty executed as of the Amendment Effective Date by RenRe Holdings in favor of the Lenders, the Fronting Bank and the Administrative Agent pursuant to the Consent and Amendment.
(d) Section 2.6(c) of the Credit Agreement shall be amended and restated in its entirety as follows.
“(c) Subject to the provisions of Section 3.9(a), in the event that, at any time, the aggregate Loans and L/C Obligations of any
Credit Party exceeds the Borrowing Base of such Credit Party at such time, such Credit Party shall within three Business Days deposit into a Custodial Account Eligible Collateral or prepay its Loans or reduce its L/C Obligations, or a combination of
the foregoing, in an amount sufficient to eliminate such excess.”
(e) Deletion of Certain Affirmative Covenants. Each of
Sections 6.1, 6.2, 6.3(a), 6.3(b), 6.3(c), 6.3(e), 6.3(f), 6.6, 6.7, 6.8, and 6.9 of the Credit Agreement shall be deleted in its entirety and replaced with “[Reserved].”
(f) Deletion of Financial Covenants. Each of Sections 7.1 and 7.2 of the Credit Agreement shall be deleted in its entirety and replaced
with “[Reserved].”
(g) Deletion of Certain Negative Covenants. Each of Sections 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9,
8.10, 8.11, 8.12 and 8.13 shall be deleted in its entirety and replaced with “[Reserved].”
(h) Fundamental Changes.
Section 8.1 of the Credit shall be amended and restated in its entirety as follows.
“Fundamental Changes. Such Credit
Party will not (a) liquidate, wind up or dissolve, and (b) solely with respect to any Credit Party that is an Account Party, such Account Party will not enter into any consolidation, merger or other combination, or agree to do any of the
foregoing; provided, however, that such Account Party may merge into or consolidate with any other Person so long as (y) the surviving corporation is either (i) such Account Party or (ii) a Wholly Owned Subsidiary of
RenRe Holdings
3
organized under the laws of Bermuda or the United States of America, and (z) immediately after giving effect thereto, no Default or Event of Default would occur or exist.”
(i) Events of Default. Section 9.1 of the Credit Agreement shall be amended as follows.
(i) Section 9.1(d) shall be amended by replacing the phrase “any Credit Party” in such Section with “RenRe
Holdings or any Credit Party”.
(ii) Section 9.1(f) shall be amended by replacing the phrase “Platinum
Holdings or any of its Material Subsidiaries” in such Section with “RenRe Holdings, Platinum Holdings or any of the Material Subsidiaries of Platinum Holdings”.
(iii) Section 9.1(g) shall be amended by replacing the phrase “Platinum Holdings or any of its Material
Subsidiaries” in such Section with “RenRe Holdings, Platinum Holdings or any of the Material Subsidiaries of Platinum Holdings”.
(iv) Section 9.1(k) shall be amended and restated in its entirety as follows.
“(k) At any time, any Subsidiary Credit Party shall cease to be a Wholly Owned Subsidiary of RenRe Holdings other than as
otherwise permitted in this Agreement; or”
(v) Section 9.1(m) shall be amended and restated in its entirety as
follows.
“(m) (i) RenRe Holdings shall fail (1) to pay any amounts under the RenRe Holdings Guaranty when due, (2) to
comply with the covenants set forth in Section 6.2 of the RenRe Holdings Guaranty or (3) to observe, perform or comply with any other condition, covenant or agreement contained in the RenRe Holdings Guaranty and such failure to observe,
perform or comply shall continue for a period of 30 days from the earlier of (I) the date on which any of the Chief Executive Officer, Chief Financial Officer, Treasurer, General Counsel or Controller of Guarantor acquires knowledge of such
failure and (II) the date the Administrative Agent has given notice of such failure to Guarantor, (ii) the obligations of RenRe Holdings under the RenRe Holdings Guaranty shall for any reason terminate or cease, in whole or in material part, to
be a legally valid and binding obligation of RenRe Holdings, or RenRe Holdings or any Person acting for or on behalf of RenRe Holdings shall contest the validity or binding nature of the RenRe Holdings Guaranty, or (iii) there shall occur an
Event of Default under and as defined in the RenRe Holdings Credit Agreement.”
(j) Section 11.4 of the Credit Agreement shall be
amended to add Section 11.4(d) as follows.
4
“(d) Each notice given to a Credit Party shall also be given concurrently to RenRe Holdings
at the address set forth in the RenRe Holdings Guaranty.”
ARTICLE III
CONDITIONS OF EFFECTIVENESS
3.1 The limited consent set forth in Article I shall become effective as of the date when, and only when, the Administrative Agent
shall have received an executed counterpart of this Amendment from the Credit Parties and Lenders constituting Required Lenders under the Credit Agreement.
3.2 The amendments set forth in Section 2.1 hereof shall become effective as of the date (the “Amendment Effective
Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(a) The Administrative Agent
shall have received an executed counterpart of this Amendment from the Credit Parties and Lenders constituting Required Lenders under the Credit Agreement;
(b) The Merger shall have been consummated substantially simultaneously with the Amendment Effective Date in accordance with the terms of the
Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders, the Fronting Bank or the Administrative
Agent as reasonably determined by the Administrative Agent, without the prior consent of the Required Lenders (such consent not to be unreasonably withheld, delayed or conditioned).
(c) The Administrative Agent shall have received an executed Guaranty from RenRe Holdings in substantially the form attached hereto as
Exhibit A (the “RenRe Holdings Guaranty”);
(d) The Administrative Agent shall have received a certificate, signed
by a Responsible Officer of Platinum Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) all representations and warranties of the Credit Parties contained in the Credit Agreement and the
other Credit Documents (including the representations and warranties set forth in Article IV hereof) are true and correct as of the Amendment Effective Date, immediately after giving effect to this Amendment (except to the extent any such
representation or warranty is expressly stated to have been made as of a specific date, in which case such representation or warranty shall be true and correct as of such date), and (ii) no Default or Event of Default has occurred and is
continuing as of the Amendment Effective Date, immediately after giving effect to this Amendment;
(e) The Administrative Agent shall have
received a certificate of the secretary, an assistant secretary or other appropriate officer of Platinum Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) attached thereto is a true and
complete copy of the articles or certificate of incorporation, certificate of formation or other
5
organizational document and all amendments thereto of Platinum Holdings as in effect immediately following the consummation of the Merger and (ii) attached thereto is a true and complete
copy of the bylaws or similar governing document of Platinum Holdings as in effect immediately following the consummation of the Merger;
(f) The Administrative Agent shall have received a certificate of the secretary, an assistant secretary or other appropriate officer of RenRe
Holdings, in form and substance reasonably satisfactory to the Administrative Agent, certifying that (i) attached thereto is a true and complete copy of the articles or certificate of incorporation, certificate of formation or other
organizational document and all amendments thereto of RenRe Holdings, certified as of a recent date by the Secretary of State (or comparable Governmental Authority) of its jurisdiction of organization, and that the same has not been amended since
the date of such certification, (ii) attached thereto is a true and complete copy of the bylaws or similar governing document of RenRe Holdings, as then in effect and as in effect at all times from the date on which the resolutions referred to
in clause (iii) below were adopted to and including the date of such certificate, and (iii) attached thereto is a true and complete copy of resolutions adopted by the board of directors (or similar governing body) of RenRe Holdings
authorizing the execution, delivery and performance of the RenRe Holdings Guaranty, and as to the incumbency and genuineness of the signature of each officer of RenRe Holdings executing the RenRe Holdings Guaranty;
(g) There shall be no Loans outstanding on the Amendment Effective Date and the aggregate Letter of Credit Exposure of the Lenders on the
Amendment Effective Date shall not be greater than $100,000,000;
(h) Each Lender shall have received such other documentation or
information regarding RenRe Holdings required to satisfy applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, as each Lender may reasonably request at least five
Business Days prior to the consummation of the Merger;
(i) All material governmental authorizations and approvals necessary in connection
with the consummation of the Merger shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Administrative Agent, the Fronting Bank or the Lenders; and no law or regulation
shall be applicable that seeks to enjoin, restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of the Merger; and all third-party consents necessary in connection with the consummation of the
Merger shall have been obtained and remain in effect (except for any third-party consents with respect to which the failure to obtain such consents would not result in a Material Adverse Effect); and
(j) The Credit Parties shall have paid all reasonable out-of-pocket costs and expenses of the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto).
6
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent, the Fronting Bank and the Lenders to enter into this Amendment, each Credit Party represents and warrants
to the Administrative Agent, the Fronting Bank and the Lenders as follows:
4.1 Authorization; Enforceability. Such Credit Party
has taken all necessary corporate action to execute, deliver and perform this Amendment and has validly executed and delivered this Amendment. This Amendment constitutes the legal, valid and binding obligation of such Credit Party, enforceable
against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally or by
general equitable principles regardless of whether enforceability is considered in a proceeding in equity or at law.
4.2 No
Violation. The execution, delivery and performance by each Credit Party of this Amendment, and compliance by it with the terms hereof, do not and will not (i) violate any provision of its articles of incorporation or formation, bylaws or
other applicable formation or organizational documents, (ii) contravene any other Requirement of Law applicable to it or (iii) conflict with, result in a breach of, or result in the creation of any Lien under, or require any payment to be
made under, or constitute (with notice, lapse of time or both) a default under any material indenture, agreement or other instrument to which it is a party, by which it or any of its properties are bound or to which it is subject, other than, in the
case of clauses (ii) and (iii), such contraventions, conflicts, breaches, Liens, payments and defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
4.3 Governmental and Third-Party Authorization. No consent, approval, authorization or other action by, notice to, or registration or
filing with, any Governmental Authority or other third-party Person is or will be required as a condition to or otherwise in connection with the due execution, delivery and performance by such Credit Party of this Amendment or the legality, validity
or enforceability hereof.
ARTICLE V
ACKNOWLEDGEMENT AND CONFIRMATION
Each Credit Party hereby confirms and agrees that, after giving effect to this Amendment, and except as expressly amended hereby, the Credit
Agreement and the other Credit Documents to which it is a party remain in full force and effect and enforceable against it in accordance with their respective terms and shall not be discharged, diminished, limited or otherwise affected in any
respect. Each Credit Party represents and warrants to the Administrative Agent, the Fronting Bank and the Lenders that as of the Amendment Effective Date it has no knowledge of any claims, counterclaims, offsets, or defenses to or with respect to
its obligations under the Credit Documents, or if such Credit Party has any such claims, counterclaims, offsets or defenses to the Credit Documents or any transaction related to the Credit Documents, the same are hereby waived, relinquished and
released in consideration of the execution of this Amendment. The amendments contained herein shall not, in any manner, be construed to constitute payment of, or
7
impair, limit, cancel or extinguish, or constitute a novation in respect of, the Obligations of the Credit Parties evidenced by or arising under the Credit Agreement and the other Credit
Documents. This acknowledgement and confirmation by the Credit Parties is made and delivered to induce the Administrative Agent, the Fronting Bank and the Lenders to enter into this Amendment, and the Credit Parties acknowledge that the
Administrative Agent, the Fronting Bank and the Lenders would not enter into this Amendment in the absence of the acknowledgement and confirmation contained herein.
ARTICLE VI
MISCELLANEOUS
6.1
Governing Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York (including Sections 5-1401 and 5-1402 of the New York General Obligations Law, but excluding all other choice
of law and conflicts of law rules).
6.2 Credit Document. As used in the Credit Agreement, “hereinafter,”
“hereto,” “hereof,” and words of similar import shall, unless the context otherwise requires, mean the Credit Agreement after amendment by this Amendment. Any reference to the Credit Agreement or any of the other Credit Documents
herein or in any such documents shall refer to the Credit Agreement and Credit Documents as amended hereby. This Amendment is limited to the matters expressly set forth herein, and shall not constitute or be deemed to constitute an amendment,
modification or waiver of any provision of the Credit Agreement except as expressly set forth herein. This Amendment shall constitute a Credit Document under the terms of the Credit Agreement.
6.3 Severability. To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any
jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of
this Amendment in any jurisdiction.
6.4 Successors and Assigns. This Amendment shall be binding upon, inure to the benefit of and
be enforceable by the respective successors and permitted assigns of the parties hereto.
6.5 Construction. The headings of the
various sections and subsections of this Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.
6.6 Counterparts; Integration. This Amendment may be executed and delivered via facsimile or electronic mail with the same force and
effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. This Amendment constitutes the entire
contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
duly authorized officers as of the date first above written.
|
|
|
| PLATINUM UNDERWRITERS HOLDINGS, LTD. |
|
|
| By: |
|
/s/ Gareth S. Bahlmann |
| Name: |
|
Gareth S. Bahlmann |
| Title: |
|
Assistant Secretary |
|
| PLATINUM UNDERWRITERS BERMUDA, LTD. |
|
|
| By: |
|
/s/ Gareth S. Bahlmann |
| Name: |
|
Gareth S. Bahlmann |
| Title: |
|
Assistant Secretary |
|
| PLATINUM UNDERWRITERS REINSURANCE, INC. |
|
|
| By: |
|
/s/ Gareth S. Bahlmann |
| Name: |
|
Gareth S. Bahlmann |
| Title: |
|
Assistant Secretary |
|
| PLATINUM UNDERWRITERS FINANCE, INC. |
|
|
| By: |
|
/s/ Gareth S. Bahlmann |
| Name: |
|
Gareth S. Bahlmann |
| Title: |
|
Assistant Secretary |
SIGNATURE PAGE TO
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, as Fronting Bank and as a Lender |
|
|
| By: |
|
/s/ Karen Hanke |
| Name: |
|
Karen Hanke |
| Title: |
|
Managing Director |
SIGNATURE PAGE TO
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
|
|
|
U.S. BANK NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender |
|
|
| By: |
|
/s/ Inna Kotsubey |
| Name: |
|
Inna Kotsubey |
| Title: |
|
Vice President |
SIGNATURE PAGE TO
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
|
|
|
ING BANK N.V., as Documentation Agent and as a
Lender |
|
|
| By: |
|
/s/ M.E.R. Sharman |
| Name: |
|
M.E.R. Sharman |
| Title: |
|
Managing Director |
|
|
| By: |
|
/s/ M.D. Riordan |
| Name: |
|
M.D. Riordan |
| Title: |
|
Managing Director |
SIGNATURE PAGE TO
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
|
|
|
| NATIONAL AUSTRALIA BANK LIMITED, as Documentation Agent and as a Lender |
|
|
| By: |
|
/s/ Helen Hsu |
| Name: |
|
Helen Hsu |
| Title: |
|
Director |
SIGNATURE PAGE TO
CONSENT AND AMENDMENT TO CREDIT AGREEMENT
Exhibit A
RenRe Holdings Guaranty
[see
attached]
Schedule 1.1(a)
Commitments and Notice Addresses
Commitments
|
|
|
|
|
| Lender |
|
Commitment |
|
| Wells Fargo Bank, National Association |
|
$ |
22,500,000.00 |
|
| U.S. Bank National Association |
|
$ |
22,500,000.00 |
|
| ING Bank N.V. |
|
$ |
22,500,000.00 |
|
| National Australia Bank Limited |
|
$ |
22,500,000.00 |
|
| State Street Bank and Trust Company |
|
$ |
10,000,000.00 |
|
|
|
|
|
|
| Total |
|
$ |
100,000,000.00 |
|
|
|
|
|
|
Notice Addresses for Credit Parties1
Platinum Underwriters Holdings, Ltd.
Address:
Renaissance
House
12 Crow Lane
Pembroke, HM-19
Bermuda
Attention:
Chief
Financial Officer
General Counsel
Fax: (441) 295-4513
Platinum
Underwriters Bermuda, Ltd.
Address:
Renaissance House
12 Crow Lane
Pembroke, HM-19
Bermuda
Attention:
Chief
Financial Officer
Fax: (441) 295-4513
| 1 |
Platinum Underwriters Finance, Inc. is the agent to receive, accept and acknowledge for and on behalf Platinum Underwriters Bermuda, Ltd. and Platinum Underwriters Holdings, Ltd. and in respect of their respective
properties, service of any and all legal process, summons, notices and documents which may be served in any action or proceeding arising under or as a result of the Credit Agreement or any other Credit Documents. |
Platinum Underwriters Reinsurance, Inc.
Address:
140 Broadway
Suite 4200
New York, NY
10005
USA
Attention:
Chief Financial Officer
General Counsel
Fax:
(212) 238-9626
Platinum Underwriters Finance, Inc.
Address:
140 Broadway
Suite 4200
New York, NY
10005
USA
Attention:
Chief Financial Officer
General Counsel
Fax:
(212) 238-9466
| |
• |
|
Each notice given to a Credit Party shall also be given concurrently to RenRe Holdings at the address set forth in the RenRe Holdings Guaranty. |
Notice Addresses for Administrative Agent/Wells Fargo as Fronting Bank
Administrative Agent’s Office
(for payments and
requests for Credit Extensions):
Wells Fargo Bank, National Association, as Administrative Agent
1525 W. W.T. Harris Blvd.
Building 1B1 East, MAC D1109-019
Charlotte, North Carolina 28262
Attention: Syndication Agency
Services
Telephone: (704) 590-2706
Facsimile:
(704) 590-2782
with a copy to:
Wells Fargo Bank,
National Association, as Administrative Agent
One Wells Fargo Center, 14th Floor, MAC D1053-144
301 South College Street
Charlotte, North Carolina 28202
Attention: Karen Hanke
Telephone: (704) 374-3061
Facsimile: (704) 715-1486
Instructions for wire
transfers to the Administrative Agent:
Wells Fargo Bank, National Association
ABA Routing No. 121000248
Charlotte, North Carolina
Account Number: 01459670001944
Account Name: Agency Services
Clearing Account
Ref: Platinum Underwriters Holdings, Ltd.
Attn: Financial Cash Controls
Other Notices as
Administrative Agent:
Wells Fargo Bank, National Association, as Administrative Agent
One Wells Fargo Center, 14th Floor, MAC D1053-144
301 South
College Street
Charlotte, North Carolina 28202
Attention:
Karen Hanke
Telephone: (704) 374-3061
Facsimile:
(704) 715-1486
Fronting Bank
Wells Fargo Bank,
National Association, as Fronting Bank
One Wells Fargo Center, 14th Floor, MAC D1053-144
301 South College Street
Charlotte, North Carolina 28202
Attention: Karen Hanke
Telephone: (704) 374-3061
Facsimile: (704) 715-1486
Exhibit 10.2
GUARANTY
This GUARANTY
(this “Guaranty”), dated as of March 2, 2015, is made by RENAISSANCERE HOLDINGS LTD., a Bermuda exempted company (“Guarantor”), in favor of the Guaranteed Parties (as hereinafter defined). Capitalized terms
used herein without definition shall have the meanings given to them in the Credit Agreement (as defined below).
RECITALS
WHEREAS, Platinum Holdings, the Subsidiary Credit Parties, the Lenders and the Administrative Agent are parties to a Third Amended and
Restated Credit Agreement, dated as of April 9, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its provisions, the “Credit Agreement”), pursuant to which the
Lenders have made available to the Credit Parties a revolving credit facility.
WHEREAS, Platinum Holdings has entered into an Agreement
and Plan of Merger (the “Merger Agreement”), dated as of November 23, 2014, with Guarantor, and Port Holdings Ltd., a Bermuda exempted company and a wholly owned subsidiary of Guarantor (“Port Holdings”),
pursuant to which Platinum Holdings will merge with Port Holdings, with Platinum Holdings being the surviving entity and becoming a wholly owned subsidiary of Guarantor (the “Merger”).
WHEREAS, pursuant to a Consent and Amendment to Credit Agreement, dated as of the date hereof, between Platinum Holdings, the Subsidiary
Credit Parties, the Administrative Agent and the Required Lenders (the “Amendment”), the Required Lenders have agreed to (i) consent to the Merger and waive any noncompliance with Section 8.1 and Section 9.1(m) of the
Credit Agreement that would result from the Merger, and (ii) make certain amendments to the Credit Agreement on the condition that Guarantor shall have agreed, by executing and delivering this Guaranty, to guarantee to the Guaranteed Parties
the payment in full of the Guaranteed Obligations (as hereinafter defined) and to comply with certain covenants contained in the Credit Agreement, dated as of May 17, 2012, between Guarantor, the lenders party thereto (the “RenRe
Lenders”) and Wells Fargo Bank, National Association, as administrative agent (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its provisions, the “RenRe Holdings Credit
Agreement”).
WHEREAS, upon consummation of the Merger, Guarantor will own all of the issued and outstanding equity interests of
Platinum Holdings and will obtain benefits as a result of the terms of, and the continued extension of credit to the Credit Parties under, the Credit Agreement, which benefits are hereby acknowledged, and, accordingly, Guarantor desires to execute
and deliver this Guaranty. The execution of this Guaranty is a condition precedent to the effectiveness of the amendments to the Credit Agreement made under the Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, Guarantor hereby agrees as follows:
1. Guaranty.
(a)
Guarantor hereby irrevocably, absolutely and unconditionally:
(i) guarantees to the Lenders, the Fronting Bank and
the Administrative Agent (collectively, the “Guaranteed Parties”) the full and prompt payment, at any time and from time to time as and when due (whether at the stated maturity, by acceleration or otherwise), of all Obligations of
the Credit Parties under the Credit Agreement and the other Credit Documents (collectively, the “Guaranteed Obligations”); and
(ii) agrees to pay the reasonable fees and expenses of counsel to, and reimburse upon demand all reasonable costs and expenses
incurred or paid by, (y) any Guaranteed Party in connection with any suit, action or proceeding to enforce or protect any rights of the Guaranteed Parties hereunder and (z) the Administrative Agent in connection with any amendment,
modification or waiver hereof or consent pursuant hereto, and to indemnify and hold each Guaranteed Party and its directors, officers, employees, agents and Affiliates harmless from and against any and all claims, losses, damages, obligations,
liabilities, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) of any kind or nature whatsoever, whether direct, indirect or consequential, that may at any time be imposed on, incurred by or
asserted against any such indemnified party as a result of, arising from or in any way relating to this Guaranty or the collection or enforcement of the Guaranteed Obligations; provided, however, that no indemnified party shall have
the right to be indemnified hereunder for any such claims, losses, costs and expenses (x) to the extent determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful
misconduct of such indemnified party or (y) that result from a claim by Guarantor or any Credit Party against an indemnified party for breach in bad faith of such indemnified party’s obligations hereunder or under any other Credit Document
if Guarantor or such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(b) Notwithstanding the provisions of subsection (a) above and notwithstanding any other provisions contained herein or in any other
Credit Document, no provision of this Guaranty shall require or permit the collection from Guarantor of interest in excess of the maximum rate or amount that Guarantor may be required or permitted to pay pursuant to applicable law.
(c) The guaranty of Guarantor set forth in this Section is a guaranty of payment as a primary obligor, and not a guaranty of collection.
2. Guaranty Unconditional. The obligations of Guarantor under this Guaranty shall, to the maximum extent permitted by applicable law,
be unconditional, absolute and irrevocable and, without limiting the generality of the foregoing, shall, to the maximum extent permitted by applicable law, not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release (including with respect to any Collateral) in respect of
any obligation of any other obligor under any of the Credit Documents, by operation of law or otherwise;
(ii) any
modification or amendment of, or supplement to, any of the Credit Documents;
2
(iii) any release, non-perfection or invalidity of any direct or indirect
security (including the Collateral) for any obligation of any other obligor under any of the Credit Documents;
(iv) any
change in the corporate existence, structure or ownership of any obligor, or any proceeding under any Debtor Relief Law affecting any other obligor or its assets or any resulting release or discharge of any obligation of any other obligor contained
in any of the Credit Documents;
(v) the existence of any claim, setoff or other rights which any obligor may have at any
time against any other obligor, the Administrative Agent, any Fronting Bank, any Lender or any other corporation or person, whether in connection with any of the Credit Documents or any unrelated transactions; provided that nothing herein
shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(vi) any invalidity or
unenforceability relating to or against any other obligor for any reason of any of the Credit Documents, or any provision of applicable law or regulation purporting to prohibit the payment by any other obligor of principal, interest or any other
amount payable under any of the Credit Documents;
(vii) any law, regulation or order of any jurisdiction, or any other
event, affecting any term of any obligation or the Lenders’ rights with respect thereto; or
(viii) any other
circumstance that might otherwise constitute a legal or equitable discharge of, or a defense, set-off or counterclaim available to, any Credit Party, Guarantor or a surety or guarantor generally, other than the occurrence of all of the following:
(1) the payment in full in cash of the Guaranteed Obligations (other than contingent and indemnification obligations not then due and payable), (2) the termination of the Commitments under the Credit Agreement, and (3) the termination
or expiration of all Letters of Credit (unless the outstanding Letters of Credit have been Cash Collateralized in accordance with Section 3.9(a) of the Credit Agreement, without giving effect to subpart (z) thereof, and the Administrative
Agent shall be satisfied that all periods during which such Cash Collateral (or any portion thereof) could be avoided, voided or otherwise invalidated under all Debtor Relief Laws applicable thereto have expired without the presentment or filing of
any petition, the entry or issuance of any show-cause order or any other initiation of any proceeding or case, in each case under such Debtor Relief Laws) (the events in clauses (1), (2) and (3) above, collectively, the
“Termination Requirements”).
3. Waiver by Guarantor. Guarantor irrevocably waives acceptance hereof, presentment,
demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any corporation or person against any other obligor, any other corporation or person or any Collateral. To the fullest extent
permitted by applicable law, Guarantor shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out
of, in connection with, or as a result of, this Guaranty, any other Credit Document or any agreement or instrument contemplated hereby or the transactions
3
contemplated hereby or thereby. Guarantor warrants and agrees that each waiver set forth in this Section 3 is made with full knowledge of its significance and consequences, and such
waivers shall be effective to the maximum extent permitted by law.
4. Subrogation. Guarantor hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against any Credit Party, or any other guarantor that arise from the existence, payment, performance or enforcement of Guarantor’s obligations under or in
respect of this Guaranty, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Lender against any Credit Party or any other guarantor or any
Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from any Credit Party or any other guarantor, directly or indirectly, in cash or other property
or by setoff or in any other manner, payment or security on account of such claim, remedy or right, unless and until the Termination Requirements have been satisfied. If any amount shall be paid to Guarantor in violation of the immediately preceding
sentence at any time prior to the satisfaction of the Termination Requirements, such amount shall be received and held in trust for the benefit of the Lenders, shall be segregated from other property and funds of Guarantor and shall forthwith be
paid or delivered to the Administrative Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to all amounts payable under this Guaranty, whether matured or unmatured, in accordance with the
terms of the Credit Documents, or to be held as collateral for any amounts payable under this Guaranty thereafter arising. If (i) Guarantor shall make payment to any Lender of all or any amounts payable under this Guaranty, and (ii) the
Termination Requirements shall have been satisfied, the Lenders will, at Guarantor’s request and expense, execute and deliver to Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to Guarantor of an interest in the obligations resulting from such payment made by Guarantor pursuant to this Guaranty.
5. Representations and Warranties. Guarantor hereby represents and warrants to the Guaranteed Parties as follows:
5.1 Corporate Organization and Power. Guarantor (i) is duly organized, validly existing and (to the extent applicable) in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the full corporate power and authority to execute, deliver and perform this Guaranty, and to own and hold its property and to engage in its business as presently
conducted, and (iii) is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the nature of its business or the ownership of its properties requires it to be so qualified, except where the
failure to be so qualified, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on Guarantor and its subsidiaries taken as a whole.
5.2 Authorization; Enforceability. Guarantor has taken all necessary corporate action to execute, deliver and perform this Guaranty and
has validly executed and delivered this Guaranty. This Guaranty constitutes the legal, valid and binding obligation of Guarantor, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally or by general equitable principles regardless of whether enforceability is considered in a proceeding in equity
or at law.
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5.3 No Violation. The execution, delivery and performance by Guarantor of this Guaranty,
and compliance by it with the terms hereof, do not and will not (i) violate any provision of its articles of incorporation or formation, its bylaws or other applicable formation or organizational documents, (ii) contravene any other
Requirement of Law applicable to it, (iii) conflict with, result in a breach of, or result in the creation of any Lien under, or require any payment to be made under, or constitute (with notice, lapse of time or both) a default under any
material indenture, agreement or other instrument to which it is a party, by which it or any of its properties are bound or to which it is subject, other than, in the case of clauses (ii) and (iii), such contraventions, conflicts, breaches,
Liens, payments and defaults that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on Guarantor and its subsidiaries taken as a whole.
5.4 Governmental and Third-Party Authorization. No consent, approval, authorization or other action by, notice to, or registration or
filing with, any Governmental Authority or other third-party Person is or will be required as a condition to or otherwise in connection with the due execution, delivery and performance by Guarantor of this Guaranty or the legality, validity or
enforceability hereof.
5.5 Financial Statements. Guarantor has delivered to the Guaranteed Parties copies of (a) the three
most recent quarterly unaudited consolidated financial statements required to be delivered by Guarantor under Section 6.1(a)(i) of the RenRe Holdings Credit Agreement as in effect on the date hereof and (b) the most recent audited
consolidated financial statements required to be delivered by Guarantor under Section 6.1(a)(ii) of the RenRe Holdings Credit Agreement as in effect on the date hereof (collectively, the “Financial Statements”). Such Financial
Statements present fairly, in all material respects, in conformity with GAAP (except as disclosed therein and, in the case of interim financial statements, for the absence of footnote disclosures) the consolidated financial position and consolidated
results of operations of Guarantor and its subsidiaries at such dates for the periods then ended, subject, in the case of quarterly financial statements, to normal year-end audit adjustments.
5.6 Covenant Compliance Certificates. Guarantor has delivered to the Guaranteed Parties copies of the compliance certificates required
under Section 6.1(f) of the RenRe Holdings Credit Agreement as in effect on the date hereof, demonstrating compliance with the financial covenants set forth in Section 6.2 with respect to the dates and periods covered by the
Financial Statements.
6. Covenants. Until the termination of the Commitments, the termination, expiration or Cash
Collateralization (in accordance with Section 3.9(a) of the Credit Agreement, without giving effect to subpart (z) thereof; provided, that, so long as any Letter of Credit remains outstanding, Guarantor shall continue to comply with
Section 6.1) of all Letters of Credit and the payment in full in cash of all Guaranteed Obligations (other than contingent and indemnification obligations not then due and payable), Guarantor agrees that it will:
6.1 Financial Statement Reporting. Furnish to the Administrative Agent the
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information required to be delivered to the RenRe Lenders and at such times as are required under Sections
6.1(a)(i) and 6.1(a)(ii) of the RenRe Holdings Credit Agreement as in effect on the date hereof (and without regard to any amendment, supplement, modification or termination thereof occurring after the date of this Guaranty), with such Sections and
all relevant defined terms being deemed incorporated by reference into this Guaranty.
6.2 Financial Covenants. Comply with the
financial covenants contained in Sections 7.1 and 7.2(a) of the RenRe Holdings Credit Agreement as in effect on the date hereof (and without regard to any amendment, supplement, modification or termination thereof occurring after the date of this
Guaranty), with such Sections and all relevant defined terms being deemed incorporated by reference into this Guaranty.
6.3 Compliance
Certificates. Furnish to the Administrative Agent, concurrently with the delivery to the Administrative Agent of the quarterly and annual financial statements under Section 6.1, copies of the compliance certificates required under
Section 6.1(f) of the RenRe Holdings Credit Agreement as in effect on the date hereof (and without regard to any amendment, supplement, modification or termination thereof occurring after the date of this Guaranty), demonstrating compliance
with the financial covenants set forth in Section 6.2 with respect to the dates and periods covered by the applicable financial statements.
7. Financial Condition of Credit Parties. Guarantor represents that it has knowledge of the Credit Parties’ financial condition
and affairs and that it has adequate means to obtain from the Credit Parties on an ongoing basis information relating thereto and to the Credit Parties’ ability to pay and perform the Guaranteed Obligations. Guarantor agrees that the Guaranteed
Parties shall have no obligation to investigate the financial condition or affairs of the Credit Parties for the benefit of Guarantor nor to advise Guarantor of any fact respecting, or any change in, the financial condition or affairs of the Credit
Parties that might become known to any Guaranteed Party at any time, whether or not such Guaranteed Party knows or believes or has reason to know or believe that any such fact or change is unknown to Guarantor, or might (or does) materially increase
the risk of Guarantor as guarantor, or might (or would) affect the willingness of Guarantor to continue as a guarantor of the Guaranteed Obligations.
8. Payments; Application; Set-Off.
(a) Guarantor agrees that, upon the failure of any Credit Party to pay any Guaranteed Obligations when and as the same shall become due
(whether at the stated maturity, by acceleration or otherwise), and without limitation of any other right or remedy that any Guaranteed Party may have at law, in equity or otherwise against Guarantor, Guarantor will, subject to the provisions of
Section 1(b), forthwith pay or cause to be paid to the Administrative Agent, for the benefit of the Guaranteed Parties, an amount equal to the amount of the Guaranteed Obligations then due and owing as aforesaid.
(b) All payments made by Guarantor hereunder will be made in Dollars to the Administrative Agent, without set-off, counterclaim or other
defense and, in accordance with the Credit Agreement, free and clear of and without deduction for any Taxes in the same manner and to the same extent required of the Credit Parties under Section 2.16 of the Credit Agreement, Guarantor hereby
agreeing to comply with and be bound by the provisions of Section 2.16 of the Credit Agreement in respect of all payments made by it hereunder.
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(c) All payments made hereunder shall be applied in accordance with the provisions of
Section 2.11(e) of the Credit Agreement.
(d) In the event that the proceeds of any such sale, disposition or realization are
insufficient to pay all amounts to which the Guaranteed Parties are legally entitled, Guarantor shall be liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Credit Document for interest on
overdue principal or such other rate as shall be fixed by applicable law, together with the costs of collection and all other fees, costs and expenses payable hereunder.
(e) Upon and at any time after the occurrence and during the continuance of any Event of Default, each Guaranteed Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such Guaranteed Party or any such Affiliate to or for the credit or the account of Guarantor against any and all of the obligations of Guarantor now or
hereafter existing under this Guaranty or any other Credit Document to such Guaranteed Party, irrespective of whether or not such Guaranteed Party shall have made any demand under this Guaranty or any other Credit Document and although such
obligations of Guarantor may be contingent or unmatured or are owed to a branch or office of such Guaranteed Party different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Guaranteed Party and
their respective Affiliates under this subsection are in addition to other rights and remedies (including other rights of setoff) that such Guaranteed Parties or their respective Affiliates may have. Each Guaranteed Party agrees to notify the Credit
Parties and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
9. No Waiver. The rights and remedies of the Guaranteed Parties expressly set forth in this Guaranty and the other Credit Documents are
cumulative and in addition to, and not exclusive of, all other rights and remedies available at law, in equity or otherwise. No failure or delay on the part of any Guaranteed Party in exercising any right, power or privilege shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or be construed to be a waiver of any Default or
Event of Default. No course of dealing between Guarantor and the Guaranteed Parties or their agents or employees shall be effective to amend, modify or discharge any provision of this Guaranty or any other Credit Document or to constitute a waiver
of any Default or Event of Default. No notice to or demand upon Guarantor in any case shall entitle Guarantor or any other guarantor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of
any Guaranteed Party to exercise any right or remedy or take any other or further action in any circumstances without notice or demand.
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10. Enforcement. The Guaranteed Parties agree that, except as provided in
Section 8(e), this Guaranty may be enforced only by the Administrative Agent, acting upon the instructions or with the consent of the Required Lenders as provided for in the Credit Agreement, and that no Guaranteed Party shall have any
right individually to enforce or seek to enforce this Guaranty or to realize upon any Collateral or other security given to secure the payment and performance of Guarantor’s obligations hereunder. The obligations of Guarantor hereunder are
independent of the Guaranteed Obligations, and a separate action or actions may be brought against Guarantor whether or not action is brought against any Credit Party or any other guarantor and whether or not any Credit Party or any other guarantor
is joined in any such action. If acceleration of the time for payment of any amount payable by any Credit Party under any of the Credit Documents is stayed upon the insolvency, bankruptcy or reorganization of such Credit Party, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement shall nonetheless be payable by Guarantor under this Guaranty forthwith on demand by the Administrative Agent made at the request of the Required Lenders. Guarantor agrees
that to the extent all or part of any payment of the Guaranteed Obligations made by any Person is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid by or on behalf of any Guaranteed Party to a
trustee, receiver or any other party under any Insolvency Laws (the amount of any such payment, a “Reclaimed Amount”), then, to the extent of such Reclaimed Amount, this Guaranty shall continue in full force and effect or be revived
and reinstated, as the case may be, as to the Guaranteed Obligations intended to be satisfied as if such payment had not been received; and Guarantor acknowledges that the term “Guaranteed Obligations” includes all Reclaimed Amounts that
may arise from time to time.
11. Amendments, Waivers, etc. No amendment, modification, waiver, discharge or termination of, or
consent to any departure by Guarantor from, any provision of this Guaranty, shall be effective unless in a writing signed by the Administrative Agent and such of the Lenders as may be required under the provisions of the Credit Agreement to concur
in the action then being taken, and then the same shall be effective only in the specific instance and for the specific purpose for which given.
12. Addition and Release of Other Guarantors. Guarantor agrees that its obligations hereunder shall not be discharged, limited or
otherwise affected by the addition or release of any guarantor, or by reason of the Administrative Agent’s actions in effecting the same, in each case without the necessity of giving notice to or obtaining the consent of any other guarantor.
13. Continuing Guaranty; Term; Successors and Assigns; Assignment; Survival. This Guaranty is a continuing guaranty and covers all
of the Guaranteed Obligations as the same may arise and be outstanding at any time and from time to time from and after the date hereof, and shall (i) remain in full force and effect until satisfaction of all of the Termination Requirements
(provided that the provisions of Sections 1(a)(ii) and 4 shall survive any termination of this Guaranty), (ii) be binding upon and enforceable against Guarantor and its successors and assigns (provided,
however, that Guarantor may not sell, assign or transfer any of its rights, interests, duties or obligations hereunder without the prior written consent of the Lenders) and (iii) inure to the benefit of and be enforceable by each
Guaranteed Party and its successors and assigns. Without limiting the generality of clause (iii) above, any Guaranteed Party may, in accordance with the provisions of the Credit Agreement, assign all or a portion of the Guaranteed Obligations
held by it (including by the sale of participations), whereupon each Person that
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becomes the holder of any such Guaranteed Obligations shall (except as may be otherwise agreed between such Guaranteed Party and such Person) have and may exercise all of the rights and benefits
in respect thereof granted to such Guaranteed Party under this Guaranty or otherwise. Guarantor hereby irrevocably waives notice of and consents in advance to the assignment as provided above from time to time by any Guaranteed Party of all or any
portion of the Guaranteed Obligations held by it and of the corresponding rights and interests of such Guaranteed Party hereunder in connection therewith. All representations, warranties, covenants and agreements herein shall survive the execution
and delivery of this Guaranty.
14. Governing Law; Consent to Jurisdiction; Service of Process.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
(b) GUARANTOR
IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW. GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION. GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT.
(c) Guarantor hereby irrevocably consents to service of process in any action or proceeding in the same
manner required for delivery of notices under Section 15. Nothing in this Section shall affect the right of any party to serve legal process in any other manner permitted by law or affect the right of any Guaranteed Party to bring any
action or proceeding against Guarantor in the courts of any other jurisdiction.
15. Notices. All notices and other communications
provided for herein shall be delivered in the manner set forth in Section 11.4 of the Credit Agreement: (a) if to Guarantor, at its address for notices set forth below its signature to this Guaranty, and (b) if to any Guaranteed
9
Party, at its address for notices set forth in the Credit Agreement; in each case, as such addresses may be changed from time to time pursuant to the Credit Agreement, and with copies to such
other Persons as may be specified under the provisions of the Credit Agreement.
16. Severability. To the extent any provision of
this Guaranty is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such
provision in any other jurisdiction or the remaining provisions of this Guaranty in any jurisdiction.
17. Construction. The
headings of the various sections and subsections of this Guaranty have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof. Unless the context otherwise requires, words in
the singular include the plural and words in the plural include the singular.
18. Counterparts; Effectiveness. This Guaranty may
be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This
Guaranty shall become effective, as to Guarantor, upon the execution and delivery by Guarantor of a counterpart hereof.
19. Judgment
Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from Guarantor hereunder in the currency expressed to be payable herein (the “specified currency”) into another currency, the
parties hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the specified currency with such
other currency at the Administrative Agent’s main Charlotte, North Carolina office on the Business Day preceding that on which final, non-appealable judgment is given. The obligations of Guarantor in respect of any sum due to any Lender or the
Administrative Agent hereunder shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Lender or the Administrative Agent (as the case
may be) of any sum adjudged to be so due in such other currency such Lender or the Administrative Agent (as the case may be) may in accordance with normal, reasonable banking procedures purchase the specified currency with such other currency. If
the amount of the specified currency so purchased is less than the sum originally due to such Lender or the Administrative Agent, as the case may be, in the specified currency, Guarantor agrees, to the fullest extent that it may effectively do so,
as a separate obligation and notwithstanding any such judgment, to indemnify such Lender or the Administrative Agent, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds (a) the sum originally
due to any Lender or the Administrative Agent, as the case may be, in the specified currency and (b) any amounts shared with other Lenders as a result of allocations of such excess as a disproportionate payment to such Lender under
Section 2.14 of the Credit Agreement, such Lender or the Administrative Agent, as the case may be, agrees to remit such excess to Guarantor.
[signature page follows]
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IN WITNESS WHEREOF, the parties have caused this Guaranty to be executed under seal by
their duly authorized officers as of the date first above written.
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| GUARANTOR: |
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| RENAISSANCERE HOLDINGS LTD. |
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| By: |
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/s/ Jeffrey D. Kelly |
| Name: |
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Jeffrey D. Kelly |
| Title: |
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Executive Vice President, Chief Operating Officer and Chief Financial Officer |
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| Address: Renaissance
House 12 Crow Lane Pembroke, HM 19
Bermuda Attention: Todd R. Fonner
Fax: (441) 292-9453 |
Accepted and agreed to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as
Administrative Agent
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| By: |
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/s/ Karen Hanke |
| Name: |
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Karen Hanke |
| Title: |
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Managing Director |
RenaissanceRe Holdings Ltd. Guaranty
Exhibit 10.3
CONSENT AND AMENDMENT TO FACILITY AGREEMENT
This CONSENT AND AMENDMENT TO FACILITY AGREEMENT (this “Consent and Amendment”), dated as of March 2, 2015, is
entered into by and among PLATINUM UNDERWRITERS BERMUDA, LTD., a Bermuda company (“Borrower”), PLATINUM UNDERWRITERS HOLDINGS, LTD., a Bermuda company (“Guarantor”), ING BANK, N.V., as a lender,
and NATIONAL AUSTRALIA BANK LIMITED, as agent (the “Agent”), security agent, and a lender (together with ING BANK, N.V, the “Lenders”).
RECITALS
A. The
Borrower, the Guarantor and the Lenders are parties to a Facility Agreement, dated as of July 31, 2012 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Agreement”), pursuant
to which the Lenders have made available to the Borrower an uncommitted U.S. Dollar, Australian Dollar and New Zealand Dollar letter of credit facility in the aggregate principal amount of U.S.$125,000,000 for the issuance of standby letters of
credit. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Facility Agreement.
B. The
Guarantor has entered into an Agreement and Plan of Merger, dated as of November 23, 2014 (the “Merger Agreement”), with RenaissanceRe Holdings Ltd., a Bermuda exempted company (“RenRe Holdings”), and Port
Holdings Ltd., a Bermuda exempted company and a wholly owned subsidiary of RenRe Holdings (“Port Holdings”), pursuant to which the Guarantor will merge with Port Holdings, with the Guarantor being the surviving entity and becoming a
wholly owned subsidiary of RenRe Holdings (the “Merger”).
C. The consummation of the Merger, expected to be on or about
March 2, 2015, will constitute a change of control for purposes of the Facility Agreement.
D. The Borrower and the Guarantor have
requested that (i) the Lenders party hereto (the “Majority Banks”) consent to the Merger, as required by Clause 20.4 of the Facility Agreement, and (ii) the Facility Agreement be amended to (a) remove certain of the
covenants and Events of Default and (b) to make certain other amendments to the Facility Agreement, including adding RenRe Holdings as a Guarantor.
E. The Majority Banks are willing to consent to the Merger and to amend the Facility Agreement on the terms and conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
LIMITED CONSENT
The
Majority Banks hereby consent to the Merger and waive any Default or Event of Default that would otherwise result if the Merger were not consummated in compliance with Clause 20.4 of the Facility Agreement; provided, that, the Merger shall be
consummated substantially in accordance with the terms of the Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and
adverse to the Lenders or the Agent as reasonably determined by the Agent, without the prior consent of the Majority Banks (such consent not to be unreasonably withheld, delayed or conditioned).
ARTICLE II
AMENDMENTS
TO FACILITY AGREEMENT
2.1 Amendments to Defined Terms.
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(a) |
The following defined terms shall be added to Clause 1.1 of the Facility Agreement in appropriate alphabetical order: |
“Amendment Effective Date” has the meaning set forth in the Consent and Amendment.
“Consent and Amendment” means the Consent and Amendment, dated as of March 2, 2015, between the Borrower, the Guarantor
and the Lenders.
“RenRe Holdings” means RenaissanceRe Holdings Ltd., a Bermuda exempted company.
“RenRe Holdings Guaranty” means the Guaranty executed as of the Amendment Effective Date by RenRe Holdings in favor of the
Lenders pursuant to the Consent and Amendment.
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(b) |
The defined term “Finance Document” in Clause 1.1 of the Facility Agreement shall be amended and restated in its entirety as follows: |
“Finance Document” means this Agreement, any Fee Letter, any Security Document, the Control Agreement, the L/C Fee Rate/Margin
Side Letter, the RenRe Holdings Guaranty and any other document designated as such by the Agent and the Guarantor in writing.”
2.2
Deletion of Certain Provisions. Each of Clauses 18.1, 18.2, 18.3, 18.4, 18.5, 19, 20.3, 20.4 and 20.7 of the Facility Agreement shall be deleted in its entirety and replaced with “[Reserved].”
2
2.3 Amendments to Events of Default. Clause 21 of the Facility Agreement shall be amended
as follows:
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(a) |
Clause 21.1 shall be amended by replacing the phrase “An Obligor” in such Clause with “RenRe Holdings or an Obligor.” |
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(b) |
Clause 21.3(a) shall be amended by replacing the phrase “An Obligor” in such Clause with “RenRe Holdings or an Obligor.” |
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(c) |
Clause 21.4(a) shall be amended by replacing the phrase “an Obligor” in such Clause with “RenRe Holdings or an Obligor” and by replacing the phrase “any Obligor” in such Clause with
“RenRe Holdings or any Obligor.” |
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(d) |
Clause 21.6(a) shall be amended by replacing the phrase “a member of the Group” in such Clause with “RenRe Holdings or a member the Group.” |
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(e) |
Clause 21.6(b) shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
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(f) |
Clause 21.6(c) shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
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(g) |
Clause 21.7(a) shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
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(h) |
Clause 21.7(b) shall be amended by replacing phrase “any member of the Group” in the first place it appears in such Clause with “RenRe Holdings or any member of the Group” and by replacing the phrase
“an Obligor” in such Clause with “RenRe Holdings or an Obligor.” |
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(i) |
Clause 21.7(c) shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
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(j) |
Clause 21.7(d) shall be amended by replacing the phrase “any member of the Group” in the first place it appears in such Clause with “RenRe Holdings or any member of the Group.” |
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(k) |
Clause 21.7(e) shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
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(l) |
Clause 21.8 shall be amended by replacing the phrase “any member of the Group” in such Clause with “RenRe Holdings or any member of the Group.” |
| |
(m) |
Clause 21.9 shall be shall be amended and restated in its entirety as follows: |
“The
Borrower is not or ceases to be a direct or indirect subsidiary of RenRe Holdings.”
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| |
(n) |
Clause 21.10 shall be amended by replacing the phrase “an Obligor” in such Clause with “RenRe Holdings or an Obligor.” |
| |
(o) |
Clause 21.11 shall be amended by replacing the phrase “An Obligor” in such Clause with “RenRe Holdings or an Obligor.” |
2.4 Amendments to Notices. Clause 30.3 of the Facility Agreement shall be amended to add a new Clause 30.3(f) as follows:
“(f) All notices to an Obligor shall also be sent to RenRe Holdings at the address set forth in the RenRe Holdings Guaranty.”
ARTICLE III
CONDITIONS
OF EFFECTIVENESS
3.1 The limited consent set forth in Article I shall become effective as of the date when, and only when, the
Agent shall have received an executed counterpart of this Consent and Amendment from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and the Guarantor.
3.2 The amendments set forth in Article II hereof shall become effective as of the date (the “Amendment Effective
Date”) when, and only when, each of the following conditions precedent shall have been satisfied:
(a) The Agent shall have
received an executed counterpart of this Consent and Amendment from the Lenders constituting the Majority Banks under the Facility Agreement and from the Borrower and the Guarantor;
(b) The Merger shall have been consummated substantially simultaneously with the Amendment Effective Date in accordance with the terms of the
Merger Agreement in all material respects and without giving effect to any modifications, amendments, consents or waivers of the terms of the Merger Agreement that are material and adverse to the Lenders or the Agent as reasonably determined by the
Agent, without the prior consent of the Majority Banks (such consent not to be unreasonably withheld, delayed or conditioned);
(c) The
Agent shall have received an executed Guaranty from RenRe Holdings in substantially the form attached hereto as Exhibit A (the “RenRe Holdings Guaranty”);
(d) The Agent shall have received a certificate, signed by an officer of the Guarantor, in form and substance reasonably satisfactory to the
Agent, certifying that (i) all representations and warranties of the Borrower and the Guarantor contained in the Facility Agreement and the other Finance Documents (including the representations and warranties set forth in Article IV
hereof) are true and correct as of the Amendment Effective Date, immediately after giving effect to this Consent and Amendment (except to the extent any such representation or warranty is expressly stated to have been made as of a specific date, in
which case such representation or warranty shall be true and correct as of such date), and (ii) no Default or Event of Default has occurred and is continuing as of the Amendment Effective Date, immediately after giving effect to this Consent
and Amendment;
4
(e) All material governmental authorizations and approvals necessary in connection with the
consummation of the Merger shall have been obtained and shall remain in effect and shall not impose any restriction or condition materially adverse to the Agent or the Lenders; and no law or regulation shall be applicable that seeks to enjoin,
restrain, restrict, set aside or prohibit, or impose materially adverse conditions upon, the consummation of the Merger; and all third-party consents necessary in connection with the consummation of the Merger shall have been obtained and remain in
effect (except for any third-party consents that are not material or with respect to which the failure to obtain such consents would not result in a Material Adverse Effect); and
(f) The Borrower and the Guarantor shall have paid all reasonable out-of-pocket costs and expenses of the Lenders in connection with the
preparation, negotiation, execution and delivery of this Consent and Amendment (including, without limitation, the reasonable fees and out-of-pocket expenses of counsel for the Agent with respect thereto).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Agent and the Lenders to enter into this Consent and Amendment, each of the Borrower and the Guarantor represents and warrants
to the Lenders as follows:
4.1 Authorization; Enforceability. Each of the Borrower and the Guarantor has taken all necessary
corporate action to execute, deliver and perform this Consent and Amendment and has validly executed and delivered this Consent and Amendment. This Consent and Amendment constitutes the legal, valid and binding obligation of each of the Borrower and
the Guarantor, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other similar laws affecting
creditors’ rights generally or by general equitable principles regardless of whether enforceability is considered in a proceeding in equity or at law.
4.2 No Violation. The execution, delivery and performance by each of the Borrower and the Guarantor of this Consent and Amendment, and
compliance by it with the terms hereof, do not and will not (i) violate any provision of its articles of incorporation or formation, bylaws or other applicable formation or organizational documents, (ii) contravene any other law applicable
to it or (iii) conflict with, result in a breach of, or result in the creation of any lien under, or require any payment to be made under, or constitute (with notice, lapse of time or both) a default under any material indenture, agreement or
other instrument to which it is a party, by which it or any of its properties are bound or to which it is subject, other than, in the case of clauses (ii) and (iii), such contraventions, conflicts, breaches, liens, payments and defaults that
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
4.3 Governmental and
Third-Party Authorization. No consent, approval, authorization or other action by, notice to, or registration or filing with, any governmental
5
authority or other third-party is or will be required as a condition to or otherwise in connection with the due execution, delivery and performance by the Borrower and the Guarantor of this
Consent and Amendment or the legality, validity or enforceability hereof.
ARTICLE V
MISCELLANEOUS
5.1
Governing Law. This Consent and Amendment and any non-contractual obligation arising out of or on connection with it shall be governed by English law.
5.2 Effect; No Waiver. Each of the Borrower and the Guarantor hereby confirms and agrees that, after giving effect to this Consent and
Amendment, and except as expressly amended hereby, the Facility Agreement and the other Finance Documents to which it is a party remain in full force and effect and enforceable against it in accordance with their respective terms and neither the
Finance Documents nor the rights and remedies of the Lenders thereunder shall be modified, discharged, diminished, limited, or otherwise affected in any other respect.
5.3 Finance Document. As used in the Facility Agreement, “hereinafter,” “hereto,” “hereof,” and words of
similar import shall, unless the context otherwise requires, mean the Facility Agreement after amendment by this Consent and Amendment. Any reference to the Facility Agreement or any of the other Finance Documents herein or in any such documents
shall refer to the Facility Agreement and Finance Documents as amended hereby. This Consent and Amendment is limited to the matters expressly set forth herein, and shall not constitute or be deemed to constitute an amendment, modification or waiver
of any provision of the Facility Agreement or any other Finance Document except as expressly set forth herein. This Consent and Amendment shall constitute a Finance Document under the terms of the Facility Agreement.
5.4 Severability. To the extent any provision of this Consent and Amendment is prohibited by or invalid under the applicable law of any
jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in any such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of
this Consent and Amendment in any jurisdiction.
5.5 Successors and Assigns. This Consent and Amendment shall be binding upon,
inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto.
5.6
Construction. The headings of the various sections and subsections of this Consent and Amendment have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof.
5.7 Counterparts; Integration. This Consent and Amendment may be executed and delivered via facsimile or electronic mail with the same
force and effect as if an original were executed and may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. This Consent and Amendment
constitutes the entire contract among the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Consent and Amendment to be
executed by their duly authorized officers as of the date first above written.
|
|
|
| PLATINUM UNDERWRITERS HOLDINGS, LTD. |
|
|
| By: |
|
/s/ Jeffrey D. Kelly |
| Name: |
|
Jeffrey D. Kelly |
| Title: |
|
Executive Vice President, Chief Operating Officer and Chief Financial Officer |
|
| PLATINUM UNDERWRITERS BERMUDA, LTD. |
|
|
| By: |
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/s/ Mark Wilcox |
| Name: |
|
Mark Wilcox |
| Title: |
|
Senior Vice President and Group Controller |
|
|
|
NATIONAL AUSTRALIA BANK LIMITED, as Agent
and a Lender |
|
|
| By: |
|
/s/ Bill Seabrook |
| Name: |
|
Bill Seabrook |
| Title: |
|
Director |
|
|
|
| ING BANK, N.V., as a Lender |
|
|
| By: |
|
/s/ M.E.R. Sharman |
| Name: |
|
M.E.R. Sharman |
| Title: |
|
Managing Director |
|
|
| By: |
|
/s/ M. Groen |
| Name: |
|
M. Groen |
| Title: |
|
Director |
Exhibit 10.4
GUARANTY
This GUARANTY
(this “Guaranty”), dated as of March 2, 2015, is made by RENAISSANCERE HOLDINGS LTD., a Bermuda exempted company (the “RenRe Guarantor”), in favor of the Guaranteed Parties (as hereinafter defined). Capitalized
terms used herein without definition shall have the meanings given to them in the Facility Agreement (as defined below).
RECITALS
WHEREAS, Platinum Underwriters Bermuda, Ltd., as a borrower (the “Borrower”), Platinum Underwriters Holdings, Ltd.,
as a guarantor (the “Guarantor”), ING BANK, N.V., as a lender and National Australia Bank Limited, as agent (the “Agent”), and a lender (together with ING BANK, N.V, the “Lenders”) are
parties to a Facility Agreement, dated as of July 31, 2012 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Agreement”), pursuant to which the Lenders have made available to
the Borrower an uncommitted U.S. Dollar, Australian Dollar and New Zealand Dollar letter of credit facility in the aggregate principal amount of U.S.$125,000,000 for the issuance of standby letters of credit.
WHEREAS, the Guarantor has entered into an Agreement and Plan of Merger, dated as of November 23, 2014 (the “Merger
Agreement”), with the RenRe Guarantor, and Port Holdings Ltd., a Bermuda exempted company and a wholly owned subsidiary of the RenRe Guarantor (“Port Holdings”), pursuant to which the Guarantor will merge with Port
Holdings, with the Guarantor being the surviving entity and becoming a wholly owned subsidiary of the RenRe Guarantor (the “Merger”).
WHEREAS, pursuant to a Consent and Amendment to Credit Agreement, dated as of March 2, 2015, between the Borrower, the Guarantor and the
Lenders (the “Amendment”), the Lenders have agreed to (i) consent to the Merger and waive any Default or Event of Default that would otherwise result if the Merger were not consummated in compliance with Clause 20.4 of the
Facility Agreement, and (ii) make certain amendments to the Facility Agreement on the condition that the RenRe Guarantor shall have agreed, by executing and delivering this Guaranty, to guarantee to the Guaranteed Parties (as hereinafter
defined) the payment in full of the Guaranteed Obligations (as hereinafter defined) and to comply with certain covenants contained in the Credit Agreement, dated as of May 17, 2012, by and among the RenRe Guarantor, the lenders party thereto
(the “RenRe Lenders”) and Wells Fargo Bank, National Association, as administrative agent (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its provisions, the “RenRe
Holdings Credit Agreement”).
WHEREAS, upon consummation of the Merger, the RenRe Guarantor will own all of the issued and
outstanding equity interests of the Guarantor and will obtain benefits as a result of the terms of, and the continued extension of credit to the Borrower under the Facility Agreement, which benefits are hereby acknowledged, and, accordingly, the
RenRe Guarantor desires to execute and deliver this Guaranty. The execution of this Guaranty is a condition precedent to the effectiveness of the amendments to the Facility Agreement made under the Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, the RenRe Guarantor hereby agrees as follows:
1. Guaranty.
(a) The
RenRe Guarantor hereby irrevocably, absolutely and unconditionally:
(i) guarantees to the Finance Parties (collectively,
the “Guaranteed Parties”) the full and prompt payment, at any time and from time to time as and when due (whether at the stated maturity, by acceleration or otherwise), of all obligations of the Borrower and the Guarantor under the
Facility Agreement and the other Finance Documents (collectively, the “Guaranteed Obligations”); and
(ii)
agrees to pay the reasonable fees and expenses of counsel to, and reimburse upon demand all reasonable costs and expenses incurred or paid by, (y) any Guaranteed Party in connection with any suit, action or proceeding to enforce or protect any
rights of the Guaranteed Parties hereunder and (z) the Agent in connection with any amendment, modification or waiver hereof or consent pursuant hereto, and to indemnify and hold each Guaranteed Party and its directors, officers, employees,
agents and Affiliates harmless from and against any and all claims, losses, damages, obligations, liabilities, penalties, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) that may at any time be
imposed on, incurred by or asserted against any such indemnified party as a result of, arising from or in any way relating to this Guaranty or the collection or enforcement of the Guaranteed Obligations; provided, however, that no
indemnified party shall have the right to be indemnified hereunder for any such claims, losses, costs and expenses (x) to the extent determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such indemnified party or (y) that result from a claim by the RenRe Guarantor, the Borrower or the Guarantor against an indemnified party for breach in bad faith of such indemnified party’s
obligations hereunder or under any other Finance Document if the RenRe Guarantor, the Borrower or the Guarantor has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
(b) Notwithstanding the provisions of subsection (a) above and notwithstanding any other provisions contained herein or in any other
Finance Document, no provision of this Guaranty shall require or permit the collection from the RenRe Guarantor of interest in excess of the maximum rate or amount that the RenRe Guarantor may be required or permitted to pay pursuant to applicable
law.
(c) The guaranty of the RenRe Guarantor set forth in this Section is a guaranty of payment as a primary obligor, and not a guaranty
of collection.
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2. Guaranty Unconditional. The obligations of the RenRe Guarantor under this Guaranty
shall, to the maximum extent permitted by applicable law, be unconditional, absolute and irrevocable and, without limiting the generality of the foregoing, shall, to the maximum extent permitted by applicable law, not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release (including with respect to
any Collateral) in respect of any obligation of any other obligor under any of the Finance Documents, by operation of law or otherwise;
(ii) any modification or amendment of, or supplement to, any of the Finance Documents;
(iii) any release, non-perfection or invalidity of any direct or indirect security (including the Collateral) for any
obligation of any other obligor under any of the Finance Documents;
(iv) any change in the corporate existence, structure
or ownership of any obligor, or any proceeding under any Debtor relief law affecting any other obligor or its assets or any resulting release or discharge of any obligation of any other obligor contained in any of the Finance Documents;
(v) the existence of any claim, setoff or other rights which any obligor may have at any time against any other obligor, any
Finance Party or any other corporation or person, whether in connection with any of the Finance Documents or any unrelated transactions; provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) any invalidity or unenforceability relating to or against any other obligor for any reason of any of
the Finance Documents, or any provision of applicable law or regulation purporting to prohibit the payment by any other obligor of principal, interest or any other amount payable under any of the Finance Documents;
(vii) any law, regulation or order of any jurisdiction, or any other event, affecting any term of any obligation or the Finance
Parties’ rights with respect thereto; or
(viii) any other circumstance that might otherwise constitute a legal or
equitable discharge of, or a defense, set-off or counterclaim available to, the Borrower, the Guarantor, the RenRe Guarantor or a surety or guarantor generally, other than the occurrence of all of the following: (1) the payment in full in cash
of the Guaranteed Obligations (other than contingent and indemnification obligations not then due and payable), (2) the cancellation of the Total Stated Amounts and (3) the termination or expiration of all Letters of Credit (unless full
Collateral Cover in respect of all outstanding Letters of Credit in the form of Cash denominated in the same currency as such Letter of Credit has been delivered to the Agent) (the events in clauses (1), (2) and (3) above, collectively,
the “Termination Requirements”).
3. Waiver by RenRe Guarantor. The RenRe Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as well
3
as any requirement that at any time any action be taken by any corporation or person against any other obligor, any other corporation or person or any Collateral. To the fullest extent permitted
by applicable law, the RenRe Guarantor shall not assert, and hereby waives, any claim against any indemnified party, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Guaranty, any other Finance Document or any agreement or instrument contemplated hereby or the transactions contemplated hereby or thereby. The RenRe Guarantor warrants and agrees that each
waiver set forth in this Section 3 is made with full knowledge of its significance and consequences, and such waivers shall be effective to the maximum extent permitted by law.
4. Subrogation. The RenRe Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or
hereafter acquire against the Borrower, the Guarantor or any other guarantor that arise from the existence, payment, performance or enforcement of the RenRe Guarantor’s obligations under or in respect of this Guaranty, including any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of any Finance Party against the Borrower, the Guarantor or any other guarantor or any Collateral, whether or not such
claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from the Borrower, the Guarantor or any other guarantor, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such claim, remedy or right, unless and until the Termination Requirements have been satisfied. If any amount shall be paid to the RenRe Guarantor in violation of the immediately preceding sentence
at any time prior to the satisfaction of the Termination Requirements, such amount shall be received and held in trust for the benefit of the Finance Parties, shall be segregated from other property and funds of the RenRe Guarantor and shall
forthwith be paid or delivered to the Agent in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to all amounts payable under this Guaranty, whether matured or unmatured, in accordance with the
terms of the Finance Documents, or to be held as collateral for any amounts payable under this Guaranty thereafter arising. If (i) the RenRe Guarantor shall make payment to any Finance Party of all or any amounts payable under this Guaranty,
and (ii) the Termination Requirements shall have been satisfied, the Finance Parties will, at the RenRe Guarantor’s request and expense, execute and deliver to the RenRe Guarantor appropriate documents, without recourse and without
representation or warranty, necessary to evidence the transfer by subrogation to the RenRe Guarantor of an interest in the obligations resulting from such payment made by the RenRe Guarantor pursuant to this Guaranty.
5. Representations and Warranties. The RenRe Guarantor hereby represents and warrants to the Guaranteed Parties as follows:
5.1 Corporate Organization and Power. The RenRe Guarantor (i) is duly organized, validly existing and (to the extent applicable)
in good standing under the laws of the jurisdiction of its incorporation, (ii) has the full corporate power and authority to execute, deliver and perform this Guaranty, and to own and hold its property and to engage in its business as presently
conducted, and (iii) is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where the nature of its business or the ownership of its properties requires it to be so qualified, except where the
failure to be so qualified, individually or in the aggregate, could not reasonably be expected to have a material adverse effect on the RenRe Guarantor and its subsidiaries taken as a whole.
4
5.2 Authorization; Enforceability. The RenRe Guarantor has taken all necessary corporate
action to execute, deliver and perform this Guaranty and has validly executed and delivered this Guaranty. This Guaranty constitutes the legal, valid and binding obligation of the RenRe Guarantor, enforceable against it in accordance with its terms
except as enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, fraudulent transfer, moratorium or other similar laws affecting creditors’ rights generally or by general equitable principles regardless
of whether enforceability is considered in a proceeding in equity or at law.
5.3 No Violation. The execution, delivery and
performance by the RenRe Guarantor of this Guaranty, and compliance by it with the terms hereof, do not and will not (i) violate any provision of its articles of incorporation or formation, its bylaws or other applicable formation or
organizational documents, (ii) contravene any other law or regulation applicable to it, (iii) conflict with, result in a breach of, or result in the creation of any Security under, or require any payment to be made under, or constitute
(with notice, lapse of time or both) a default under any material indenture, agreement or other instrument to which it is a party, by which it or any of its properties are bound or to which it is subject, other than, in the case of clauses
(ii) and (iii), such contraventions, conflicts, breaches, Security, payments and defaults that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the RenRe Guarantor and its subsidiaries
taken as a whole.
5.4 Governmental and Third-Party Authorization. No consent, approval, authorization or other action by, notice
to, or registration or filing with, any governmental authority or other third-party person is or will be required as a condition to or otherwise in connection with the due execution, delivery and performance by the RenRe Guarantor of this Guaranty
or the legality, validity or enforceability hereof.
5.5 Financial Statements. The RenRe Guarantor has delivered to the Guaranteed
Parties copies of (a) the three most recent quarterly unaudited consolidated financial statements required to be delivered by the RenRe Guarantor under Section 6.1(a)(i) of the RenRe Holdings Credit Agreement as in effect on the date
hereof and (b) the most recent audited consolidated financial statements required to be delivered by the RenRe Guarantor under Section 6.1(a)(ii) of the RenRe Holdings Credit Agreement as in effect on the date hereof (collectively, the
“Financial Statements”). Such Financial Statements present fairly, in all material respects, in conformity with GAAP (except as disclosed therein and, in the case of interim financial statements, for the absence of footnote
disclosures) the consolidated financial position and consolidated results of operations of the RenRe Guarantor and its subsidiaries at such dates for the periods then ended, subject, in the case of quarterly financial statements, to normal year-end
audit adjustments.
5.6 Covenant Compliance Certificates. The RenRe Guarantor has delivered to the Guaranteed Parties copies of the
compliance certificates required under Section 6.1(f) of the RenRe Holdings Credit Agreement as in effect on the date hereof, demonstrating compliance with the financial covenants set forth in Section 6.2 with respect to the dates and
periods covered by the Financial Statements.
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6. Covenants. Until the Termination Requirements have been satisfied, the RenRe Guarantor
agrees that it will:
6.1 Financial Statement Reporting. Furnish to the Agent the information required to be delivered to the RenRe
Lenders and at such times as are required under Sections 6.1(a)(i) and 6.1(a)(ii) of the RenRe Holdings Credit Agreement as in effect on the date hereof (with such Sections and all relevant defined terms being deemed incorporated by reference into
this Guaranty).
6.2 Financial Covenants. Comply with the financial covenants contained in Sections 7.1 and 7.2(a) of the RenRe
Holdings Credit Agreement as in effect on the date hereof (with such Sections and all relevant defined terms being deemed incorporated by reference into this Guaranty).
6.3 Compliance Certificates. Furnish to the Agent, concurrently with the delivery to the Agent of the quarterly and annual financial
statements under Section 6.1, copies of the compliance certificates required under Section 6.1(f) of the RenRe Holdings Credit Agreement as in effect on the date hereof, demonstrating compliance with the financial covenants set forth in
Section 6.2 with respect to the dates and periods covered by the applicable financial statements.
7. Financial Condition of the
Borrower and the Guarantor. The RenRe Guarantor represents that it has knowledge of the Borrower’s and the Guarantor’s financial condition and affairs and that it has adequate means to obtain from the Borrower and the Guarantor on an
ongoing basis information relating thereto and to the Borrower’s and the Guarantor’s ability to pay and perform the Guaranteed Obligations. The RenRe Guarantor agrees that the Guaranteed Parties shall have no obligation to investigate the
financial condition or affairs of the Borrower and the Guarantor for the benefit of the RenRe Guarantor nor to advise the RenRe Guarantor of any fact respecting, or any change in, the financial condition or affairs of the Borrower and the RenRe
Guarantor that might become known to any Guaranteed Party at any time, whether or not such Guaranteed Party knows or believes or has reason to know or believe that any such fact or change is unknown to the RenRe Guarantor, or might (or does)
materially increase the risk of the RenRe Guarantor as guarantor, or might (or would) affect the willingness of the RenRe Guarantor to continue as a guarantor of the Guaranteed Obligations.
8. Payments; Application; Set-Off.
(a) The RenRe Guarantor agrees that, upon the failure of the Borrower or the Guarantor to pay any Guaranteed Obligations when and as the same
shall become due (whether at the stated maturity, by acceleration or otherwise), and without limitation of any other right or remedy that any Guaranteed Party may have at law, in equity or otherwise against the RenRe Guarantor, the RenRe Guarantor
will, subject to the provisions of Section 1(b), within three Business Days pay or cause to be paid to the Agent, for the benefit of the Guaranteed Parties, an amount equal to the amount of the Guaranteed Obligations then due and owing as
aforesaid.
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(b) Subject to the provisions of Clause 28.8 of the Facility Agreement, all payments made by the
RenRe Guarantor hereunder will be made in Dollars to the Agent, without set-off, counterclaim or other defense and, in accordance with the Facility Agreement, free and clear of and without deduction for any Taxes in the same manner and to the same
extent required of the Borrower and the Guarantor under Section 11 of the Facility Agreement, the RenRe Guarantor hereby agreeing to comply with and be bound by the provisions of Section 11 of the Facility Agreement in respect of all
payments made by it hereunder.
(c) All payments made hereunder shall be applied in accordance with the provisions of Clause 28.5 of the
Facility Agreement.
(d) In the event that the proceeds of any such sale, disposition or realization are insufficient to pay all amounts
to which the Guaranteed Parties are legally entitled, the RenRe Guarantor shall be liable for the deficiency, together with interest thereon at the highest rate specified in any applicable Finance Document for interest on overdue principal or such
other rate as shall be fixed by applicable law, together with the costs of collection and all other fees, costs and expenses payable hereunder.
(e) Upon and at any time after the occurrence and during the continuance of any Event of Default, each Guaranteed Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever
currency) at any time held and other obligations (in whatever currency) at any time owing by such Guaranteed Party or any such Affiliate to or for the credit or the account of the RenRe Guarantor against any and all of the obligations of the RenRe
Guarantor now or hereafter existing under this Guaranty or any other Finance Document to such Guaranteed Party, irrespective of whether or not such Guaranteed Party shall have made any demand under this Guaranty or any other Finance Document and
although such obligations of the RenRe Guarantor may be contingent or unmatured or are owed to a branch or office of such Guaranteed Party different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each
Guaranteed Party and their respective Affiliates under this subsection are in addition to other rights and remedies (including other rights of setoff) that such Guaranteed Parties or their respective Affiliates may have. Each Guaranteed Party agrees
to notify the Borrower, the Guarantor and the Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
9. No Waiver. The rights and remedies of the Guaranteed Parties expressly set forth in this Guaranty and the other Finance Documents
are cumulative and in addition to, and not exclusive of, all other rights and remedies available at law, in equity or otherwise. No failure or delay on the part of any Guaranteed Party in exercising any right, power or privilege shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege or be construed to be a waiver of any Default or
Event of Default. No course of dealing between the RenRe Guarantor and the Guaranteed Parties or their agents or employees shall be effective to amend, modify or discharge any provision of this Guaranty or any other Finance Document or to constitute
a waiver of any Default or Event of Default. No notice to or demand upon the RenRe Guarantor in any case shall entitle the RenRe Guarantor or any other
7
guarantor to any other or further notice or demand in similar or other circumstances or constitute a waiver of the right of any Guaranteed Party to exercise any right or remedy or take any other
or further action in any circumstances without notice or demand.
10. Enforcement. The Guaranteed Parties agree that, except as
provided in Section 8(e), this Guaranty may be enforced only by the Agent, acting upon the instructions or with the consent of the Majority Banks as provided for in the Facility Agreement, and that no Guaranteed Party shall have any right
individually to enforce or seek to enforce this Guaranty or to realize upon any Collateral or other security given to secure the payment and performance of the RenRe Guarantor’s obligations hereunder. The obligations of the RenRe Guarantor
hereunder are independent of the Guaranteed Obligations, and a separate action or actions may be brought against the RenRe Guarantor whether or not action is brought against the Borrower, the Guarantor or any other guarantor and whether or not the
Borrower, the Guarantor or any other guarantor is joined in any such action. The RenRe Guarantor irrevocably and unconditionally agrees with each Finance Party that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal,
it will, as an independent and primary obligation, indemnify that Finance Party within three Business Days of demand against any cost, loss or liability it incurs as a result of the Borrower not paying any amount which would, but for such
unenforceability, invalidity or illegality, have been payable by it under this Guaranty on the date when it would have been due. The amount payable by the RenRe Guarantor under this indemnity will not exceed the amount it would have had to pay under
this Section 10 if the amount claimed had been recoverable on the basis of a guarantee. If any discharge, release or arrangement (whether in respect of the obligations of the RenRe Guarantor or any security for those obligations or otherwise)
is made by a Finance Party in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in insolvency, liquidation, administration or otherwise, without limitation, then the liability of the
RenRe Guarantor under this Section 10 will continue or be reinstated as if the discharge, release or arrangement had not occurred.
11. Amendments, Waivers, etc. No amendment, modification, waiver, discharge or termination of, or consent to any departure by the RenRe
Guarantor from, any provision of this Guaranty, shall be effective unless in a writing signed by the Agent and such of the Finance Parties as may be required under the provisions of the Facility Agreement to concur in the action then being taken,
and then the same shall be effective only in the specific instance and for the specific purpose for which given.
12. Addition and
Release of Other Guarantors. The RenRe Guarantor agrees that its obligations hereunder shall not be discharged, limited or otherwise affected by the addition or release of any guarantor, or by reason of the Agent’s actions in effecting the
same, in each case without the necessity of giving notice to or obtaining the consent of any other guarantor.
13. Continuing Guaranty;
Term; Successors and Assigns; Assignment; Survival. This Guaranty is a continuing guaranty and covers all of the Guaranteed Obligations as the same may arise and be outstanding at any time and from time to time from and after the date hereof,
and shall (i) remain in full force and effect until satisfaction of all of the Termination Requirements (provided that the provisions of Sections 1(a)(ii) and 4 shall survive any termination of this Guaranty), (ii) be binding upon
and enforceable against the RenRe Guarantor and its successors
8
and assigns (provided, however, that the RenRe Guarantor may not sell, assign or transfer any of its rights, interests, duties or obligations hereunder without the prior written
consent of the Finance Parties) and (iii) inure to the benefit of and be enforceable by each Guaranteed Party and its successors and assigns. Without limiting the generality of clause (iii) above, any Guaranteed Party may, in accordance
with the provisions of the Facility Agreement, assign all or a portion of the Guaranteed Obligations held by it (including by the sale of participations), whereupon each person that becomes the holder of any such Guaranteed Obligations shall (except
as may be otherwise agreed between such Guaranteed Party and such person) have and may exercise all of the rights and benefits in respect thereof granted to such Guaranteed Party under this Guaranty or otherwise. The RenRe Guarantor hereby
irrevocably waives notice of and consents in advance to the assignment as provided above from time to time by any Guaranteed Party of all or any portion of the Guaranteed Obligations held by it and of the corresponding rights and interests of such
Guaranteed Party hereunder in connection therewith. All representations, warranties, covenants and agreements herein shall survive the execution and delivery of this Guaranty.
14. Governing Law; Consent to Jurisdiction; Service of Process.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND
5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
(b) THE RENRE
GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE RENRE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. THE RENRE GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. THE RENRE GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCE DOCUMENT IN ANY COURT REFERRED TO IN THIS SECTION. THE RENRE GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN
INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(c) The RenRe Guarantor hereby irrevocably consents
to service of process in any action or proceeding in the same manner required for delivery of notices under Section 15.
9
Nothing in this Section shall affect the right of any party to serve legal process in any other manner permitted by law or affect the right of any Guaranteed Party to bring any action or
proceeding against the RenRe Guarantor in the courts of any other jurisdiction.
15. Notices. All notices and other communications
provided for herein shall be delivered in the manner set forth in Section 30 of the Facility Agreement: (a) if to the RenRe Guarantor, at its address for notices set forth below its signature to this Guaranty, and (b) if to any
Guaranteed Party, at its address for notices set forth in the Facility Agreement; in each case, as such addresses may be changed from time to time pursuant to the Facility Agreement, and with copies to such other persons as may be specified under
the provisions of the Facility Agreement.
16. Severability. To the extent any provision of this Guaranty is prohibited by or
invalid under the applicable law of any jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other
jurisdiction or the remaining provisions of this Guaranty in any jurisdiction.
17. Construction. The headings of the various
sections and subsections of this Guaranty have been inserted for convenience only and shall not in any way affect the meaning or construction of any of the provisions hereof. Unless the context otherwise requires, words in the singular include the
plural and words in the plural include the singular.
18. Counterparts; Effectiveness. This Guaranty may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. This Guaranty shall become
effective, as to the RenRe Guarantor, upon the execution and delivery by the RenRe Guarantor of a counterpart hereof.
19. Judgment
Currency. If any sum due from the RenRe Guarantor under this Guaranty (a “Sum”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “First Currency”)
in which that Sum is payable into another currency (the “Second Currency”) for the purpose of either (i) making or filing a claim or proof against the RenRe Guarantor or (ii) obtaining or enforcing an order, judgment or
award in relation to any litigation or arbitration proceedings that the RenRe Guarantor shall as an independent obligation, within three Business Days of demand, indemnify each Finance Party to whom that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion including any discrepancy between (A) the rate of exchange used to convert that Sum from the First Currency into the Second Currency and (B) the rate or rates of exchange available
to that person at the time of its receipt of that Sum. The RenRe Guarantor waives any right it may have in any jurisdiction to pay any amount under this Guaranty in a currency or currency unit other than that in which it is expressed to be payable.
[signature page follows]
10
IN WITNESS WHEREOF, the parties have caused this Guaranty to be executed under seal by
their duly authorized officers as of the date first above written.
|
|
|
| GUARANTOR: |
|
| RENAISSANCERE HOLDINGS LTD. |
|
|
| By: |
|
/s/ Jeffrey D. Kelly |
| Name: |
|
Jeffrey D. Kelly |
| Title: |
|
Executive Vice President, Chief Operating Officer and Chief Financial Officer |
Address:
Renaissance House
12 Crow Lane
Pembroke, HM 19
Bermuda
Attention: Todd R. Fonner
Fax: (441) 292-9453
Accepted and agreed
to:
|
|
|
| NATIONAL AUSTRALIA BANK, |
| as Agent |
|
|
| By: |
|
/s/ Annie Truong |
| Name: |
|
Annie Truong |
| Title: |
|
Associate Director |
RenaissanceRe Holdings Ltd. Guaranty
Exhibit 99.1
RENAISSANCERE COMPLETES ACQUISITION OF PLATINUM
HAMILTON, BERMUDA, MARCH 2, 2015 – Platinum Underwriters Holdings, Ltd. (NYSE: PTP) (“Platinum” or the “Company”) announced
today that the acquisition of the Company by RenaissanceRe Holdings Ltd. (NYSE: RNR) (“RenaissanceRe”) has been completed and Platinum is now a wholly owned subsidiary of RenaissanceRe. The acquisition was originally announced on
November 24, 2014.
The completion of the acquisition follows the receipt of all necessary regulatory approvals and approval of the transaction by
Platinum shareholders, which was obtained at a special general meeting of Platinum shareholders held on February 27, 2015. Effective as of market close today, Platinum shares will cease trading on the New York Stock Exchange.
###
About Platinum
Platinum Underwriters Holdings, Ltd., now a wholly owned subsidiary of RenaissanceRe, is a leading provider of property, casualty and finite risk reinsurance
coverages, through reinsurance brokers, to a diverse clientele on a worldwide basis. Platinum operates through its principal subsidiaries in Bermuda and the United States. For further information, please visit Platinum’s website at
www.platinumre.com.
About RenaissanceRe
RenaissanceRe Holdings Ltd. is a global provider of reinsurance and insurance. The Company’s business consists of three reportable segments:
(1) Catastrophe Reinsurance, which includes catastrophe reinsurance and certain property catastrophe joint ventures managed by the Company’s ventures unit; (2) Specialty Reinsurance, which includes specialty reinsurance and certain
specialty joint ventures managed by the Company’s ventures unit; and (3) Lloyd’s, which includes reinsurance and insurance business written through RenaissanceRe Syndicate 1458.
Cautionary Statement Regarding Forward-Looking Statements:
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities Exchange Act of 1934. Forward-looking statements are based on Platinum’s current plans or expectations that are inherently subject to significant business, economic and competitive uncertainties and contingencies. These uncertainties
and contingencies can affect actual results and could cause actual results to differ materially from those expressed in any forward-looking statements made by, or on behalf of, Platinum. In particular, statements using words such as “may,”
“should,” “estimate,” “expect,” “anticipate,” “intend,” “believe,” “predict,” “potential,” or words of similar import generally involve forward-looking statements. The
inclusion of forward-looking statements in this press release should not be considered as a representation by Platinum or any other person that Platinum’s or RenaissanceRe’s current plans or expectations will be achieved. Numerous factors
could cause actual results to differ materially from those in such forward-looking statements, including, but not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement;
the failure to satisfy other conditions to completion of the merger, including receipt of regulatory approvals;
risks that the proposed transaction disrupts each company’s current plans and operations; the ability to retain key personnel; the ability to recognize the benefits of the merger; the amount
of the costs, fees, expenses and charges related to the merger; the frequency and severity of catastrophic and other events; the effectiveness of the companies’ loss limitation methods and pricing models; uncertainties in the companies’
reserving processes; the companies’ ability to maintain their respective A.M. Best and S&P financial strength ratings; risks associated with appropriately modeling, pricing for, and contractually addressing new or potential factors in loss
emergence; risks that the companies might be bound to policyholder obligations beyond their underwriting intent; risks due to the companies’ reliance on a small and decreasing number of reinsurance brokers and other distribution services;
risks relating to operating in a highly competitive environment; risks relating to deteriorating market conditions; the risk that the companies’ customers may fail to make premium payments due to them; the risk of failures of the
companies’ reinsurers, brokers or other counterparties to honor their obligations to the companies; the effect on the companies’ respective businesses of potential changes in the regulatory system under which they operate; the effects that
the imposition of U.S. corporate income tax would have on Platinum Underwriters Holdings, Ltd., RenaissanceRe Holdings Ltd. and their respective non-U.S. subsidiaries; other risks relating to potential adverse tax developments; risks relating to
adverse legislative developments; risks associated with the companies’ investment portfolios; losses that the companies could face from terrorism, political unrest and war; changes in economic conditions or inflation; and other factors
affecting future results disclosed in Platinum’s and RenaissanceRe’s filings with the U.S. Securities and Exchange Commission (the “SEC”), including but not limited to those discussed under Item 1A, “Risk Factors”,
in Platinum’s Annual Report on Form 10-K for the year ended December 31, 2014 and RenaissanceRe’s Annual Report on Form 10-K for the year ended December 31, 2014 and under “Risk Factors” in RenaissanceRe’s
registration statement on Form S-4 filed with the SEC on December 19, 2014.
|
|
|
| Contact: |
|
Kenneth A. Kurtzman |
|
|
203-252-5833 |
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