1
Exhibit 10.29
INDEMNITY AGREEMENT
(HEREINAFTER "AGREEMENT")
This INDEMNITY AGREEMENT is made effective as of this 31st day of March,
1998 by and between NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,
(hereinafter called the "COMPANY') and XXXXXX HOLDING CO. (PA), INC.
(hereinafter called "XXXXXX").
WHEREAS, the COMPANY and MANUFACTURER'S INDEMNITY AND INSURANCE COMPANY
OF AMERICA (hereinafter "MICCA" entered into an Reinsurance Agreement (a copy of
which is attached hereto as Exhibit A and hereinafter referred to as the
"REINSURANCE") whereby the COMPANY reinsured all of MICCA's obligations
(hereinafter "PRODUCTS LOSSES"), subject to certain coverage limitations, under
certain policies of products liability insurance referenced in the REINSURANCE.
WHEREAS, the COMPANY, XXXXXX and Travelers Indemnity Company of Hartford
(hereinafter "TRAVELERS") entered into a Novation Agreement (a copy of which is
attached hereto as Exhibit B and hereinafter referred to as the "TRAVELERS
NOVATION") whereby the COMPANY agreed to assume all of XXXXXX'x obligations
(hereinafter "RETENTION AMOUNTS") under certain Agreement Letters referenced in
the NOVATION.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. The COMPANY has agreed to accept: 1) one hundred percent
(100%) of the PRODUCTS LOSSES, net of reinsurance as further described in
Section 2 below; and 2) one hundred percent (100%) of the RETENTION AMOUNTS;
with the total of the MICCA PRODUCTS LOSSES and RETENTION AMOUNTS being subject
to an absolute aggregate limit of seventy five million dollars ($75,000,000.00)
(hereinafter the "TOTAL PROGRAM AGGREGATE LIMIT"). Under no circumstances shall
the total liability of the Company for the total of PRODUCTS LOSSES and the
RETENTION AMOUNTS exceed the TOTAL PROGRAM AGGREGATE LIMIT.
SECTION 2. It is understood that for purposes of this AGREEMENT that the
COMPANY is accepting one hundred percent of PRODUCTS LOSSES for those layers
which are not reinsured by the reinsurance agreements as listed in the Schedule
C attached hereto. The portions of PRODUCTS LOSSES covered by the reinsurance
agreements listed in Schedule C are not included as PRODUCTS LOSSES under this
Agreement and as such will not erode the seventy five million dollar overall
aggregate described in this Indemnity Agreement.
SECTION 3. XXXXXX hereby agrees to indemnify and reimburse, within ten
(10) business days of demand, the COMPANY against any and all liability, loss,
damage or expense, including without limitation, reasonable attorney's fees, and
allocated and unallocated loss adjustment expense, arising from all manner of
action, suits, claims for sums of money, and demands brought or made against the
COMPANY for all PRODUCTS LOSSES and RETENTION AMOUNTS in excess of the TOTAL
PROGRAM AGGREGATE LIMIT.
2
SECTION 4. This AGREEMENT shall inure to the benefit of and be binding
upon the successors and assigns of each of the parties hereto.
SECTION 5. This AGREEMENT contains the full and complete understanding
and agreement between the parties hereto with respect to the subject matter
hereof, and the parties acknowledge that neither is entering into this AGREEMENT
in reliance upon any term, condition, representation or warranty not stated
herein and that this AGREEMENT replaces any and all prior agreements whether
oral or written, pertaining to the subject matter hereof.
SECTION 6. All changes to, and waivers of any provision of, this
AGREEMENT must be in writing and agreed to by the parties hereto.
SECTION 7. No failure or delay by a party in exercising any right, power
or privilege hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder.
SECTION 8. Notwithstanding anything to the contrary, the parties agree
that the TOTAL PROGRAM AGGREGATE LIMIT shall be inclusive of all Supplementary
Payments related to the PRODUCTS LOSSES and all attorney's fees and allocated or
unallocated loss adjustment expenses related to the RETENTION AMOUNTS.
SECTION 9. This Agreement shall be governed by the laws of the State of
New York and the parties hereto do irrevocably submit to the non-exclusive
jurisdiction of the Courts in the State of New York and to the extent permitted
by law the parties expressly waive all rights to challenge or otherwise limit
such jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this AGREEMENT to be
executed by their duly authorized representatives in New York, New York as of
the date first above written.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,
By: /s/
---------------------------------
Name:
Title:
XXXXXX HOLDING CO. (PA), INC.
By: /s/
---------------------------------
Name:
Title:
