Exhibit 10.1 (c)
AMENDMENT NO. 3 TO, AND ASSIGNMENT OF, CATASTROPHE EQUITY SECURITIES
ISSUANCE OPTION AND REINSURANCE OPTION AGREEMENT
This Amendment No. 3 to, and Assignment of, Catastrophe Equity Securities
Issuance Option and Reinsurance Option Agreement (the "Amendment No. 3") is
entered into and effective as of June 1, 1999 between Xxxxxx Xxxx Educators
Corporation, a Delaware corporation ("HM"), Centre Reinsurance (U.S.) Limited, a
Bermuda corporation ("Centre Re"), and Zurich Insurance Company, a corporation
organized under the laws of Switzerland ("Zurich"), as assignee of Centre Re,
with respect to that certain Catastrophe Equity Securities Issuance Option and
Reinsurance Option Agreement dated February 15, 1997, as amended by Amendment
No. 1 and Amendment No. 2 between HM and Centre Re (as the same may be further
amended, supplemented, and restated or otherwise modified, together with all the
Exhibits and Schedules and all ancillary, related or supporting documents, the
"Agreement"). Unless otherwise defined herein or the context otherwise requires,
capitalized terms used herein have the meanings specified in the Agreement.
RECITALS
WHEREAS, Centre Re and Zurich wish to transfer and assign the Agreement,
such that Centre Re will have no further obligations or liabilities to HM under
the Agreement in respect of the period commencing 12:00 A.M., Central Time, June
1, 1999 through to 11:59:59 P.M., Central Time, December 31, 1999, and all
Agreement Years commencing thereafter;
WHEREAS, HM wishes to consent to such assignment; and
WHEREAS, in the event of multiple Events taking place during the Agreement
Year commencing 12:00 A.M. Central Time, January 1, 1999 ("Agreement Year 1999")
which develop into a Qualifying Catastrophic Event, and such multiple Events
take place both prior to 12:00 A.M. Central Time June 1, 1999 and after 12:00
A.M. Central Time, June 1, 1999 (but during Agreement Year 1999), this Amendment
No. 3 shall not prohibit HM from exercising the Securities Issuance Option
because such multiple Events happened both prior to 12:00 A.M. Central Time June
1, 1999 and after 12:00 A.M. Central Time, June 1, 1999.
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, HM, Centre Re and Zurich agree as follows:
AGREEMENT
1. Assignment and Assumption. Effective at 12:00 A.M. Central Time on June
1, 1999, Centre Re and Zurich agree that (A) Centre Re hereby transfers and
assigns to Zurich, and (B) Zurich hereby assumes and undertakes from Centre Re,
without recourse and without representation or warranty (except as provided in
this Amendment No. 3), (i) 100% of all obligations, duties, liabilities, and
promises, whether contingent or otherwise, of Centre Re under and in connection
with the Agreement in respect of, arising out of, or related to (a) the period
commencing 12:00 A.M., Central Time, June 1, 1999 through 11:59:59 P.M., Central
Time,
1
December 31, 1999, and (b) the Agreement Year commencing 12:00 A.M., Central
Time, January 1, 2000 ("Agreement Year 2000"), and the Agreement Year commencing
12:00 A.M., Central Time, January 1, 2001 ("Agreement Year 2001"), and (c) the
period thereafter, if any, and (ii) 100% of all related rights and benefits
under and in connection with the Agreement in respect of, arising out of, or
related to (a) the period commencing 12:00 A.M., Central Time, June 1, 1999
through to 11:59:59 P.M., Central Time, December 31, 1999, and (b) Agreement
Years 2000 and 2001, and (c) the period thereafter, if any, including the right
to receive the Option Fee and Option Exercise Fee, if any, in respect of the
period commencing 12:00 A.M., Central Time, June 1, 1999 through to 11:59:59
P.M., Central Time, December 31, 1999, and Agreement Years 2000 and 2001, and
the period thereafter, if any.
For purposes of clarification, with respect to any exercise of the
Securities Issuance Option relating to multiple events occurring both prior to
12:00AM Central Time, June 1, 1999 and after 12:00 AM Central Time, June 1, 1999
(but during Agreement Year 1999) which develop into a Qualifying Catastrophic
Event, such exercise shall be made against Zurich, or an affiliate of Zurich, as
such designation and/or assignment by Zurich may be permitted under the
Agreement.
Accordingly, the Agreement is hereby amended by substituting all previous
references to Centre Re with Zurich.
2. Payments; Correspondence. Centre Re and Zurich agree and acknowledge
that all payments of the Option Fee, Option Exercise Fee, if any, and any other
amounts due or that may become due in connection with, or relating to the period
commencing 12:00 A.M., Central Time, June 1, 1999 through to 11:59:59 P.M.,
Central Time, December 31, 1999, and Agreement Years 2000 and 2001 (collectively
or individually the "Payments") are the property of Zurich and not Centre Re and
HM shall remit all such Payments to Zurich or to any entity designated in
writing by Zurich. HM shall also send any and all notices, advices or other
correspondence in connection with the Agreement affecting or relating to the
period commencing 12:00 A.M., Central Time, June 1, 1999 through to 11:59:59
P.M., Central Time, December 31, 1999, or the Agreement Year 2000, or the
Agreement Year 2001 and Zurich's rights and obligations in respect of such
periods to Zurich or to any entity designated in writing by Zurich.
3. Release. HM consents to and acknowledges such assignment to, and
assumption by, Zurich of all of the rights, benefits, obligations and
liabilities of Centre Re under the Agreement, as set forth in this Amendment No.
3, and HM hereby releases Centre Re from any and all obligations, duties,
liabilities, claims, and promises, whether contingent or otherwise, of Centre Re
under and in connection with the Agreement in respect of, arising out of, or
related to the period commencing 12:00 A.M., Central Time, June 1, 1999 through
to 11:59:59 P.M., Central Time, December 31, 1999, and Agreement Year 2000, and
Agreement Year 2001, and the period thereafter, if any.
4. No Warranty or Recourse. The transfer and assignment of the Agreement
in respect of the period commencing 12:00 A.M., Central Time, June 1, 1999
through to 11:59:59 P.M., Central Time, December 31, 1999, and the Agreement
Year 2000, and the Agreement Year 2001,
2
and the period thereafter, if any, is made without warranty or recourse against
Centre Re of any kind, except for the willful misconduct, gross negligence, or
fraud of Centre Re, and except that Centre Re warrants that it has not sold or
otherwise transferred any other interest in the Agreement in respect of the
period commencing 12:00 A.M., Central Time, June 1, 1999 through to 11:59:59
P.M., Central Time, December 31, 1999, the Agreement Year 2000, and the
Agreement Year 2001 to any other party.
5. Covenants and Warranties. HM, Centre Re and Zurich each warrants and
covenants with respect to itself that (a) it is validly existing and organized
and in good standing under the laws of its jurisdiction; (b) it is duly
authorized to execute, deliver, and perform this Amendment No. 3; (c) the
execution, delivery and performance of this Amendment No. 3 does not conflict
with any provision of law or of the charter or by-laws (or equivalent
constituent documents) of such party, or of any agreement binding upon it; and
(d) this Amendment No. 3 constitutes the legal, valid and binding obligation of
HM, Centre Re and Zurich, enforceable in accordance with its terms.
6. Successors and Assigns. This Amendment No. 3 shall be binding on the
parties hereto and their respective permitted successors and assigns. This
Amendment No. 3 may be amended, changed, modified, altered or terminated only
upon the written consent of the parties hereto (or their permitted successors
and assigns). This Amendment No. 3 shall be assigned to any entity to which the
Agreement is assigned in accordance with the terms of the Agreement.
7. Counterparts. This Amendment No. 3 may be executed in one or more
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties have caused this Amendment No. 3 to
be duly executed as of the date first written above.
Xxxxxx Xxxx Educators Corporation Centre Reinsurance (U.S.) Limited
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxxx
------------------------------- ---------------------------------
Printed Name: Xxxx X. Xxxxxx Printed Name: Xxxx Xxxxxxxx
----------------------- -----------------------
Title: President & CEO Title: President
----------------------------- ------------------------------
3
By: /s/ Xxxxxx X. Xxxx
----------------------------------
Printed Name: Xxxxxx Xxxx
-----------------------
Title: Executive Vice President
------------------------------
Zurich Insurance Company
By: /s/ Xxxx Xxxxxxx
----------------------------------
Printed Name: Xxxx Xxxxxxx
-----------------------
Title: CEO - Reinsurance
-------------------------------
4
