Exhibit 10.43
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of
July ___, 2006, and effective as of the IPO Date (defined below) between XL
Financial Assurance Ltd., a Bermuda insurance corporation ("XLFA"), and XL
Insurance (Bermuda) Ltd, a Bermuda insurance corporation ("XLIB").
W I T N E S S E T H:
WHEREAS, XLFA and XLIB are both indirect wholly-owned
subsidiaries of XL Capital Ltd, a Cayman Islands corporation ("XL Capital");
WHEREAS, the stock of XLFA will be transferred to a
newly-formed holding company which will become the subject of an initial public
offering ("IPO") by XL Capital or one of its wholly-owned subsidiaries;
WHEREAS, XL Capital Assurance Inc. ("XLCA"), another
indirectly wholly-owned subsidiary of XL Capital, issued Financial Guaranty
Insurance Policies Nos. [ * ] and [ * ] on [ * ] ("Policies"), and XLCA has
ceded certain portions of these risks to XLFA pursuant to the Third Amended and
Restated Facultative Quota Share Reinsurance Treaty, dated as of July 1, 2006
("QSA");
WHEREAS, to facilitate the IPO, XLIB is prepared to indemnify
XLFA in respect of future adverse development as respects the cessions of the
Policies to it pursuant to the QSA.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
ARTICLE I
COVERAGE
Subject to the terms, conditions, and limitations of this
Agreement, XLIB agrees to indemnify XLFA on an aggregate excess of loss basis
for Aggregate Adverse Development up to the Maximum Liability Amount on the
Subject Business (as each such term is defined in Article V).
No payments shall be made under this Agreement unless XLFA has
first paid Ultimate Net Loss in an amount in excess of the Retained Reserves.
Under no circumstances shall the total liability of XLIB under this Agreement
exceed the Maximum Liability Amount (as that term is defined in Article V).
Nothing herein shall in any manner create any obligations or
establish any rights against XLIB in favor of any third parties or any persons
not parties to this Agreement except as provided in Article XIX.
ARTICLE II
TERM
This Agreement shall remain in full force and effect until the
expiry of all liabilities under this Agreement or Commutation as provided for in
Article IX.
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The provisions of this Agreement shall continue to apply to
all obligations and liabilities of the parties incurred hereunder to the end
that all such obligations and liabilities shall be fully performed and
discharged.
ARTICLE III
TERRITORY
The territorial scope of this Agreement shall be worldwide.
ARTICLE IV
[RESERVED]
ARTICLE V
DEFINITIONS
The following definitions shall apply in respect of all use of
the defined terms in this Agreement:
A. "Aggregate Adverse Development" shall mean any
increase in Total Incurred (as defined herein) on the Subject Business that will
result in Ultimate Net Loss in an amount exceeding the Retained Reserves.
B. [RESERVED]
C. "IPO Date" means the effective date of the initial
public offering of Security Capital Assurance Ltd.
D. [RESERVED]
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E. "Loss Adjustment Expense" shall mean expenses of XLCA
ceded to XLFA and/or expenses of XLFA, in each case including all court costs,
fees and expenses; fees for service of process; fees to attorneys; cost of
undercover operative and detective services; fees and expenses for financial
advisors, attorneys, third party servicers and consultants; fees of independent
adjusters or attorneys for investigation or adjustment of claims beyond initial
investigation, cost of employing experts for preparation of reports,
photographs, diagrams, chemical or physical analysis or for advice, opinion or
testimony concerning claims under investigation or in litigation; costs for
legal transcripts of testimony taken at coroner's inquests, criminal or civil
proceedings; costs for copies of any public records; costs of depositions and
court reported or recorded statements; and any other similar fees; cost or
expense reasonably chargeable to the investigation, negotiation, settlement or
defense of a claim or loss or to the protection and perfection of the
subrogation rights of any insured covered by the policies relating to the
Subject Business. This amount shall not include overhead expenses of XLCA or
XLFA or salaries or expenses of persons employed by XLCA or XLFA in an
administrative or supervisory capacity, nor for ordinary office expenses of XLCA
or XLFA.
F. "Maximum Liability Amount" shall mean $[ * ]]
G. [RESERVED]
H. "Retained Reserves" shall mean XLFA's (a) gross case
reserves of $[ * ], calculated as of June 30, 2006, and (b) loss adjustment
expense reserve of $[ * ] arising from the Subject Business before giving
consideration to this Agreement, and after giving consideration to the
facultative quota share reinsurance agreement effective August 17, 2001 between
XLFA, as
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ceding company, and XLI, as reinsurer, as amended by amendment no 1 effective as
of the IPO Date (the "XLFA/XLI Agreement), and before giving effect to any other
third party reinsurance.
I. "Subject Business" shall mean the risks attaching
under XLFA's reinsurance pursuant to the QSA of certain portions of (a)
Financial Guaranty Insurance Policy [ * ] issued by XLCA on [ * ] and (b)
Financial Guaranty Insurance Policy [ * ] issued by XLCA on [ * ].
J. "Term" shall mean the period from the IPO Date until
the expiry of all liabilities under this Agreement, both days inclusive, in
which increases to the Aggregate Adverse Development are eligible for coverage
under this Agreement.
K. "Total Incurred" shall mean the sum of (i) Ultimate
Net Loss paid after the IPO Date PLUS (ii) case reserves for Ultimate Net Loss
unpaid.
L. "Ultimate Net Loss" shall mean the actual amount XLFA
has paid or has become liable to pay with respect to the Subject Business
including, without limitation, losses, Loss Adjustment Expenses, and the amount
of any Extra Contractual Obligations and/or Excess Limits Liability after giving
consideration to the XLFA/XLI Agreement, and before giving effect to any other
third party reinsurance.
All salvages, recoveries, or payments recovered or received
subsequent to a loss settlement under this Agreement shall be applied as if
recovered or received prior to the aforesaid settlement and pursuant to Article
XIV and all necessary adjustments shall be made by the parties hereto, provided
always that nothing in this definition shall be construed to mean that Ultimate
Net Loss under this Agreement is not recoverable until XLFA's Ultimate Net Loss
has been ascertained.
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ARTICLE VI
EXTRA CONTRACTUAL OBLIGATIONS AND EXCESS LIMITS LIABILITY
"Extra Contractual Obligations" as used in this Agreement
shall mean those liabilities not covered under any other provision of this
Agreement, including third party claims against XLCA, which arise from the
handling of any claim on business covered hereunder, such liabilities arising
because of, but not limited to, the following: failure to settle within the
limit of the Policies, by reason of alleged or actual negligence, fraud, or bad
faith in rejecting an offer of settlement, in the preparation of the defense, in
the trial of any action against the insured or reinsured, or in the preparation
or prosecution of an appeal consequent upon such action, all as determined by
XLCA in its sole discretion.
"Excess Limits Liability" as used in this Agreement shall mean
damages payable in excess of the limit of the Policies as a result of alleged or
actual negligence, fraud, or bad faith in failing to settle and/or rejecting a
settlement within the limit of the Policies, in the preparation of the defense,
in the trial of any action against the insured or reinsured, or in the
preparation or prosecution of an appeal consequent upon such action. Excess
Limits Liability is any amount for which XLCA would have been contractually
liable to pay, as determined by XLCA in its sole discretion, had it not been for
the limits of the reinsured Policy.
The date on which any Extra Contractual Obligation and/or
Excess Limits Liability is incurred by XLCA shall be deemed, in all
circumstances, to be the date of the original loss.
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In the event any provision of this Article VI is rendered
illegal or unenforceable by the laws, regulations, or public policy of any
jurisdiction, such provision shall be considered void as respects that
jurisdiction only, and such a consideration shall not affect the validity or
enforceability of any other provision of this Article VI in that jurisdiction
nor the enforceability of such provision in any other jurisdiction.
In no event shall coverage be provided to the extent that such
coverage is not permitted under New York Law.
ARTICLE VII
[RESERVED]
ARTICLE VIII
[RESERVED]
ARTICLE IX
COMMUTATION
This Agreement may be commuted upon the mutual agreement of
the Parties. Upon any commutation XLIB will receive a full and final release
from all past, current and future liability under or related to this Agreement.
ARTICLE X
REPORTS AND REMITTANCES
A. As respects the Subject Business, XLFA shall furnish
to XLIB within fifty (50) days after the end of each calendar quarter:
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1. The quarterly account of Ultimate Net Loss
paid as of the end of the calendar quarter and on a cumulative basis
from the effective date of this Agreement; and
2. XLFA's estimate of case reserves for
Ultimate Net Loss unpaid as of the end of the calendar quarter;
B. Within thirty (30) days following receipt of XLFA's
quarterly report as called for above, XLIB shall pay to XLFA the positive
amount, if any, by which paid Ultimate Net Loss from the effective date of this
Agreement through the end of the calendar quarter, both dates inclusive, exceeds
the Retained Reserves, minus any Ultimate Net Loss (net of any Ultimate Net Loss
overpayments paid by XLFA) previously paid by XLIB under this Agreement. If XLIB
shall dispute the amount owing by the debtor party as set forth in the report,
the debtor party nevertheless shall pay the amount in dispute to the creditor
party as provided in this paragraph pending resolution of the dispute as
provided in this Agreement.
C. Notwithstanding the foregoing, at the option and upon
the demand of XLFA, when the amount due in the aggregate as a result of any
payment(s) on a claim under the policies relating to the Subject Business
("Policy Payment") exceeds US $500,000, XLFA shall be paid by special remittance
within five (5) business days upon receipt of a special account, which shall be
prepared by XLFA and shall contain all relevant details in connection with the
claim.
D. RESERVED.
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E. In addition to the foregoing, as soon as reasonably
possible following the end of each calendar year, at XLIB's request XLFA shall
provide XLIB with a copy of XLFA's Annual Report and/or statutory Annual
Statement.
ARTICLE XI
LOSS SETTLEMENTS AND LOSS ADJUSTMENT EXPENSES
XLCA shall be the sole judge as to what shall constitute a
claim or loss covered under the Subject Business. XLCA shall, in its sole
discretion, monitor, evaluate, negotiate, adjust, investigate, settle, defend or
compromise all claims or potential claims and all losses or potential losses,
including Extra Contractual Obligations and Excess Limits Liability. All such
negotiations, adjustments, investigations, settlements, defenses and compromises
shall be unconditionally binding on XLIB. In addition to amounts paid in
settlement of losses, XLIB shall be liable for its proportionate share of all
reasonable Loss Adjustment Expenses.
XLFA shall at all times use reasonable best efforts to keep
XLIB apprised of the status of any material events with respect to the Subject
Business and shall consult with XLIB as respects exercise of its rights and
obligations under the QSA in respect of any material aspect of the Subject
Business.
ARTICLE XII
FOLLOW THE FORTUNES
A. XLIB's liability shall attach simultaneously with
that of XLFA and shall be subject in all respects to the same risks, terms,
rates, conditions, interpretations, assessments, waivers, and to the same
modification, alterations and cancellations as the policies, the true intent of
this Agreement being that XLIB shall, in every case to which this Agreement
applies,
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follow the underwriting fortunes of XLFA and XLIB shall be bound, without
limitation, by any payments and settlements entered into by XLFA in good faith.
B. Nothing shall in any manner create any obligations or
establish any rights against XLIB in favor of any third parties or any persons
not parties to this Agreement.
ARTICLE XIII
OFFSET
In the event of insolvency of either XLFA or XLIB, offset
shall be permitted in accordance with the terms of this Article. Subject to the
foregoing, each party hereto shall have, and may exercise at any time and from
time to time, the right to offset any balances due from such party to the other
party hereto under this Agreement or under any other agreement heretofore or
hereafter entered into by and between them, and may offset the same against any
balance or balances due or to become due to the former from the latter under the
same or any other agreement between them; and the party asserting the right of
offset shall have and may exercise such right and regardless of the capacity in
which each party acted under the agreement or, if more than one, the different
agreements involved.
ARTICLE XIV
SALVAGE AND SUBROGATION
[RESERVED]
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ARTICLE XV
DELAYS, ERRORS, AND OMISSIONS
Any inadvertent delay, error, or omission made in connection
with this Agreement or any transaction hereunder shall not relieve either party
from any liability that would have attached had such delay, error, or omission
not occurred, provided that any error or omission is rectified as soon as
reasonably practical.
ARTICLE XVI
AMENDMENTS AND ALTERATIONS
This Agreement may be changed, altered, or amended as the
parties may agree, provided such change, alteration, or amendment is evidenced
in writing or by endorsement executed by XLFA and XLIB.
ARTICLE XVII
ACCESS TO RECORDS
Provided XLIB gives at least fifteen (15) days prior written
notice, it or its designated representatives, provided such representatives are
reasonably acceptable to XLFA, shall have the right to inspect at any reasonable
time, in the office of XLFA where the files are located, all records of XLFA
that pertain in any way to this Agreement; XLIB's right of inspection shall
survive expiration or cancellation of this Agreement, so long as any claim or
premium matters remain outstanding.
All non-public information provided in the course of the
inspection shall be kept confidential by XLIB as against third parties, except
as respects any obligation to do so by law or contract.
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ARTICLE XVIII
RESERVES AND FUNDING
[RESERVED]
ARTICLE XIX
INSOLVENCY
In the event of the insolvency of XLFA and the appointment of
a liquidator, receiver, conservator or statutory successor, reinsurance due
under this Agreement shall be payable with reasonable provision for
verification, on the basis of the liability of XLFA resulting from claims
allowed against XLFA by any court of competent jurisdiction or by any
liquidator, receiver, conservator or statutory successor having authority to
allow such claims without diminution because of such insolvency or because such
liquidator, receiver, conservator or statutory successor has failed to pay all
or a portion of any claims.
Payments by XLIB as set forth above shall be made directly and
exclusively to XLFA or to its liquidator, receiver, conservator or statutory
successor except (a) where this Agreement specifies another payee in the event
of the insolvency, or (b) XLIB, with the consent of the direct insureds, has
assumed such policy obligations of XLFA as direct obligations to the payees
under such policies in substitution for the obligations of XLFA to such payees.
In the event of the insolvency of XLFA, the liquidator,
receiver, conservator or statutory successor shall give written notice of the
pendency of a claim against XLFA under policies reinsured within a reasonable
time after such claim is filed in the insolvency proceeding. During the pendency
of such claim, XLIB has the right but not the duty to investigate said claim
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and interpose in the proceeding where the claim is to be adjudicated, at its own
expense, any defense or defenses that it may deem available to XLFA, or its
liquidator, receiver, conservator or statutory successor. The expense thus
incurred by XLIB will be chargeable against XLFA, subject to court approval, as
part of the expense of liquidation to the extent of a proportionate share of the
benefit which may accrue to XLFA solely as a result of the defense undertaken by
XLIB. Should XLFA go into liquidation or should a receiver be appointed, XLIB
will be entitled to exercise any offset rights specifically provided by this
Agreement and to offset any other sums permitted under applicable law.
ARTICLE XX
ARBITRATION
Any controversy or claim arising out of or relating to this Agreement,
or any alleged breach thereof, shall be determined by a sole arbitrator in
accordance with the Bermuda International Arbitration and Conciliation Xxx 0000.
The award of the arbitrator shall be final, binding and non-appealable, and
judgment on the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. All parties to any arbitration pursuant to this
clause shall bear their own costs (but not the costs of any other party) unless
the arbitrator shall otherwise decide.
ARTICLE XXI
[RESERVED]
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ARTICLE XXII
[RESERVED]
ARTICLE XXIII
GOVERNING LAW
This Agreement shall be governed by and construed according to
the internal laws of the State of New York without giving effect to the
principles of conflicts of laws thereof.
ARTICLE XXIV
CURRENCY
The currency to be used for all purposes of this Agreement
shall be the currency of the United States of America. And the sign "$" in this
Agreement refers to United States of America dollars.
ARTICLE XXV
COMMUTATION OF OTHER REINSURANCE
XLFA must give prior written notice to XLIB and XLIB must consent in
writing to the commutation of any reinsurance provided by the QSA with respect
to the Subject Business.
ARTICLE XXVI
NOTICE
All notices requests, demands, approvals and other
communications under this Agreement shall be in writing and shall be delivered
personally, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid or sent by overnight courier or sent by email to
an address specified by one party to the other in writing. Any such notice or
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other communication shall be deemed given: (a) upon actual delivery if presented
personally or sent- by overnight delivery or by facsimile transmission or sent
by email and (b) three (3) business days following deposit in the United States
mail, if sent by certified, registered or express mail, postage prepaid, in each
case to the following addresses:
If to XLFA: XL House
One Bermudiana Road
Xxxxxxxx XX JX
Bermuda
Attention: Xxxxxxx Xxxx
If to XLIB: XX Xxxxx
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxx XX XX
Xxxxxxx
Xxxxxxxxx: Xxxxxx Xxxxxxx
ARTICLE XXVII
ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns and legal
representatives. This Agreement is not assignable except by operation of law or
by mutual consent of the parties hereto; such consent not to be unreasonably
withheld.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
XL FINANCIAL ASSURANCE LTD.
By:
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Name:
Title:
XL INSURANCE (BERMUDA) LTD
By:
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Name:
Title:
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