EXHIBIT 10.3
FORM OF
INSURANCE MATTERS AGREEMENT
by and between
U.S. Bancorp
and
Xxxxx Xxxxxxx Companies
Dated as of _________, 2003
This INSURANCE MATTERS AGREEMENT, dated as of [ ], 2003, by and between
U.S. Bancorp, a Delaware corporation ("Parent"), and Xxxxx Xxxxxxx Companies, a
Delaware corporation and an indirect, wholly owned subsidiary of Parent ("Xxxxx
Xxxxxxx", and together with Parent, the "Parties" and each a "Party").
WHEREAS, the Board of Directors of Parent has determined that it is in
the best interests of Parent and its stockholders to separate Parent's existing
businesses into two independent companies;
WHEREAS, in furtherance of the foregoing, Parent and Xxxxx Xxxxxxx have
entered into a Separation and Distribution Agreement, dated as of the date
hereof (the "Separation and Distribution Agreement"), and other ancillary
agreements that will govern certain matters relating to the Separation and the
relationship of Parent, Xxxxx Xxxxxxx and their respective Subsidiaries
following the Distribution Date; and
WHEREAS, pursuant to the Separation and Distribution Agreement, the
Parties have agreed to enter into this Agreement for the purpose of setting
forth certain agreements regarding insurance matters.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I -- Definitions
Capitalized terms used in this Agreement that are not defined in
Article I or other provisions of this Agreement shall have the meanings assigned
to them in the Separation and Distribution Agreement.
1.1. "Agreement" means this Insurance Matters Agreement, including all
the Schedules hereto.
1.2. "Current Parent Policies" means Property and Casualty insurance
policies that insure Parent and one or more of its Subsidiaries or Affiliates
and that have policy periods that begin before and end after the Distribution
Date.
1.3. "Other Policies" means Property and Casualty insurance policies
with policy periods that begin and end before the Distribution Date and that
provide insurance coverage to Parent or one or more of its Subsidiaries or
Affiliates as a result of the acquisition of assets or shares of, or mergers or
consolidations with, other Persons that had previously purchased such policies
or that had succeeded to rights to obtain coverage from such policies prior to
the time of the acquisition, merger or consolidation by or with Parent or one or
more of its Subsidiaries or Affiliates.
1.4. "Prior Parent Policies" means Property and Casualty insurance
policies with policy periods that begin and end before the Distribution Date
that provide insurance coverage to Parent or one or more of its Subsidiaries or
Affiliates and that are neither Current Parent Policies nor Other Policies.
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1.5. "Property and Casualty" means property and casualty as that term
is commonly used in the insurance business and includes but is not limited to
liability policies (such as directors and officers liability policies,
employment practices liability policies, errors and omissions liability
policies, general liability policies), first party property policies, crime and
bond policies, mail policies, Excess SIPIC policies, excess securities policies,
and workers compensation policies.
ARTICLE II -- Current Parent Policies
2.1. With respect to the Current Parent Policies listed in Schedule A
to this Agreement, which were issued for the period from August 1, 2003 to
August 1, 2004, Parent hereby agrees, to the extent permitted by the insurance
policy or insurance contract and upon request by Xxxxx Xxxxxxx, to provide the
Xxxxx Xxxxxxx Group such insurance with respect to the Xxxxx Xxxxxxx Liabilities
as is afforded by those policies to the extent that Parent has the right to do
so without paying or incurring any additional premium or costs under those
policies. Prior to the currently scheduled expiration date of those policies,
August 1, 2004, unless earlier terminated by the applicable insurer, Parent
shall not cancel, terminate or amend those policies in a manner that materially
and adversely affects coverage for Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx Group.
Prior to the Distribution Date, Xxxxx Xxxxxxx shall use its commercially
reasonable efforts to obtain written confirmation from the insurers that issued
those policies that Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group shall continue to
be "Insured(s)" under those policies (as the term "Insured(s)" is defined in
those policies) from the Distribution Date to August 1, 2004. In the event that
Parent does not have the right to make Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group
"Insureds" under those policies (or the insurers refuse to provide confirmation
of Parent's right to do so), Xxxxx Xxxxxxx shall at its own expense obtain
replacement coverage (or bear the risk that such coverage is not available under
the Current Parent Policies) and Parent shall not be directly or indirectly
liable for any failure on the part of Xxxxx Xxxxxxx to obtain coverage or
receive reimbursement under such policies from the insurers.
2.2. With respect to the Current Parent Policies listed in Schedule B
to this Agreement, the period of such policies shall be deemed to end as of the
Distribution Date insofar as Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group are
concerned, and Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group shall have no right to
extend the period for reporting claims, circumstances or occurrences under such
policies. Xxxxx Xxxxxxx shall use commercially reasonable efforts to obtain, for
the period commencing with the Distribution Date, replacement insurance policies
for risks that would otherwise have been covered by such policies, or shall
self-insure such risks and Parent shall not be directly or indirectly liable for
any failure on the part of Xxxxx Xxxxxxx to insure for such risks.
2.3. With respect to the coverage of the type provided by Current
Parent Policies, Xxxxx Xxxxxxx shall use commercially reasonable efforts to
obtain its own separate replacement policies that provide substantially
equivalent coverage with commercially appropriate limits for the period
commencing with the Distribution Date. Xxxxx Xxxxxxx shall inform Parent about
the replacement policies that it plans to obtain, and, with respect solely to
the first set of replacement policies obtained for the period
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commencing with the Distribution Date, obtain the consent of Parent to the
type of coverage and the limits obtained by Xxxxx Xxxxxxx, provided that
Parent may not unreasonably withhold such consent.
ARTICLE III -- Rights in Policies with Inception Dates
Prior to the Distribution Date
3.1. As of the Distribution Date, Parent and the Parent Group assign to
Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group all rights to insurance coverage
provided for Xxxxx Xxxxxxx Liabilities under the Current Parent Policies, Prior
Parent Policies and Other Policies in accordance with the terms of such policies
and applicable principles of law and equity, subject to the applicable limits of
such policies.
3.2. As of the Distribution Date, Parent and the Parent Group retain
all rights to insurance coverage provided for Parent Liabilities under the
Current Parent Policies, Prior Parent Policies and Other Policies in accordance
with the terms of such policies and applicable principles of law and equity,
subject to the applicable limits of such policies.
3.3. For purposes of the exhaustion of any limits that apply to
coverage available under Current Parent Policies, Prior Parent Policies or Other
Policies, amounts shall be allocated to the policies on a first come/first
served basis. That means that amounts covered by such policies shall be
allocated to such policies in the order in which such amounts were paid by or on
behalf of Parent or the Parent Group, or Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx
Group, with respect to the Parent Liabilities or the Xxxxx Xxxxxxx Liabilities,
respectively. Where the policies provide coverage with respect to the Parent
Liabilities or the Xxxxx Xxxxxxx Liabilities for amounts that are not paid by or
on behalf of Parent or the Parent Group, or Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx
Group, such as for example in the case of first party coverage for the value of
property that is destroyed but not replaced, amounts shall be allocated to
policies in the order in which the relevant losses occurred.
ARTICLE IV -- Self-Insured Retentions and Related Matters
4.1. With respect to Parent Liabilities, Parent shall pay or cause to
be paid any self-insured retentions, deductibles, retrospective premiums or
other amounts payable by an insured that apply under Current Parent Policies,
Prior Parent Policies or Other Policies. With respect to such liabilities,
Parent shall also pay amounts that are not otherwise covered by the Current
Parent Policies, Prior Parent Policies or Other Parent Policies. In addition, to
the extent that there is any obligation after the Distribution Date to provide
or continue to provide security or collateral to any insurer with respect to
Parent Liabilities, Parent shall provide or cause to be provided such security
or collateral and pay or cause to be paid the cost of doing so.
4.2. With respect to Xxxxx Xxxxxxx Liabilities, Xxxxx Xxxxxxx shall pay
or cause to be paid any self-insured retentions, deductibles, retrospective
premiums or other amounts payable by an insured that apply under Current Parent
Policies, Prior Parent Policies or Other Policies. With respect to such
liabilities, Xxxxx Xxxxxxx shall also pay
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amounts that are not otherwise covered by the Current Parent Policies, Prior
Parent Policies or Other Parent Policies. In addition, to the extent that there
is any obligation after the Distribution Date to provide or continue to provide
security or collateral to any insurer with respect to Xxxxx Xxxxxxx Liabilities,
Xxxxx Xxxxxxx shall provide or cause to be provided such security or collateral
and pay or cause to be paid the cost of doing so.
4.3. To the extent that Parent continues after the Distribution Date to
make any payments or incur any costs that Xxxxx Xxxxxxx is obligated to make or
incur under Section 4.2, for any reason, including as a result of contractual
obligations or for the purpose of ensuring a smooth transition, Xxxxx Xxxxxxx
shall promptly reimburse Parent for the amount of such payments or costs.
Similarly, to the extent that Xxxxx Xxxxxxx continues after the Distribution
Date to make any payments or incur any costs that Parent is obligated to make or
incur under Section 4.1, for any reason, including as a result of contractual
obligations or for the purpose of ensuring a smooth transition, Parent shall
promptly reimburse Xxxxx Xxxxxxx for such payments or costs.
4.4. To the extent that Parent continues after the Distribution Date to
provide security or collateral to any insurer with respect to Xxxxx Xxxxxxx
Liabilities, Xxxxx Xxxxxxx shall: (a) use commercially reasonable efforts, in
cooperation with Parent, to persuade the insurer to release Parent from such
obligation and to substitute security or collateral from Xxxxx Xxxxxxx; (b) to
the extent requested to do so by Parent, until Parent is released from such
obligations, provide Parent at the expense of Xxxxx Xxxxxxx with equivalent
security or collateral; (c) reimburse Parent for the cost of continuing to
provide such security or collateral; and (d) to the extent not satisfied by the
security or collateral contemplated by subsection (b), at Parent's option either
pay on behalf of Parent any collateral or security amounts that become due with
respect to Xxxxx Xxxxxxx Liabilities or promptly reimburse Parent for security
or collateral amounts paid by Parent with respect to such liabilities.
4.5. For purposes of the exhaustion of any limits that apply to
self-insured retentions, deductibles, retrospective premiums or other amounts
payable by an insured that apply under Current Parent Policies, Prior Parent
Policies or Other Policies, amounts shall be allocated to such limits on a first
come/first served basis. That means that amounts shall be allocated to such
limits in the order in which such amounts were paid by or on behalf of Parent or
the Parent Group, or Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx Group, with respect to
the Parent Liabilities or the Xxxxx Xxxxxxx Liabilities, respectively. Where the
limits with respect to the Parent Liabilities or the Xxxxx Xxxxxxx Liabilities
apply to amounts that are not paid by or on behalf of Parent or the Parent
Group, or Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx Group, such as for example in the
case of first party coverage for the value of property that is destroyed but not
replaced, amounts shall be allocated to such limits in the order in which the
relevant losses occurred.
4.6. Xxxxx Xxxxxxx, on its own behalf and on behalf of the Xxxxx
Xxxxxxx Group, and their directors, officers and employees, hereby agrees that
insurance policies issued by Midwest Indemnity Inc. do not provide any insurance
coverage to Xxxxx Xxxxxxx or any member of the Xxxxx Xxxxxxx Group or any of the
directors, officers or employees of the foregoing in their capacity as such.
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4.7. With respect to Xxxxx Xxxxxxx Liabilities that are insured under
Current Parent Policies, Other Policies, and Prior Parent Policies issued by
commercial insurers who are entitled to reinsurance or indemnification for such
liabilities in whole or in part from Parent or a member of the Parent Group,
Xxxxx Xxxxxxx shall: (a) use commercially reasonable efforts, in cooperation
with Parent, to persuade the insurer to release Parent and the Parent Group from
such reinsurance or indemnification obligation and substitute a reinsurance or
indemnification obligation from Xxxxx Xxxxxxx or one of the Xxxxx Xxxxxxx
Subsidiaries; (b) until Parent and the Parent Group are released from such
obligations, provide Parent at the expense of Xxxxx Xxxxxxx with commercially
reasonable security or collateral; and (c) to the extent not satisfied by the
security or collateral contemplated by subsection (b), at Parent's option either
pay on behalf of Parent any reinsurance or indemnification amounts that become
due with respect to Xxxxx Xxxxxxx Liabilities or promptly reimburse Parent for
reinsurance or indemnification amounts paid by Parent or the Parent Group with
respect to such liabilities.
ARTICLE V - Cooperation With Respect to Claims and Insurance Matters
5.1. With respect to Parent Liabilities, Parent shall have the right
and the responsibility to provide appropriate notice to insurers, administer
claims to the extent necessary or appropriate, submit claims to insurers for
payment, negotiate coverage questions that may arise, and to arbitrate, litigate
and/or compromise coverage disputes and Parent shall not incur any liability for
the failure to do any of the above.
5.2. With respect to Xxxxx Xxxxxxx Liabilities, with respect only to
Current Parent Policies and Prior Parent Policies, Parent shall have the right
but not the obligation to provide appropriate notice to insurers, submit claims
to insurers for payment, negotiate coverage questions that may arise, and to
arbitrate, litigate and/or compromise coverage disputes. Xxxxx Xxxxxxx shall
give prompt written notice to Parent of all claims or losses that are
potentially eligible for coverage under Current Parent Policies and Prior Parent
Policies or that have the potential to reduce deductibles or self-insured
retentions applicable to such policies. Xxxxx Xxxxxxx shall reimburse Parent for
out-of-pocket costs, expenses and fees, including attorneys fees, reasonably
incurred by Parent for services performed by Parent pursuant to this section in
connection with Xxxxx Xxxxxxx Liabilities. In the event that Parent elects not
to exercise its rights under this section with respect to particular claims or
losses after having received notice of such claims or losses from Xxxxx Xxxxxxx,
Parent shall promptly notify Xxxxx Xxxxxxx of that election so that Xxxxx
Xxxxxxx may exercise its rights and responsibilities with respect to such claims
or losses under section 5.3, below.
5.3. With respect to Other Policies, and to the extent that Parent
chooses not to do so under Current Parent Policies and Prior Parent Policies,
Xxxxx Xxxxxxx shall have the right and the responsibility with respect to Xxxxx
Xxxxxxx Liabilities to provide appropriate notice to insurers, administer claims
to the extent necessary or appropriate, submit claims to insurers for payment,
negotiate coverage questions that may arise, and to arbitrate, litigate and/or
compromise coverage disputes.
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5.4. (a) Parent and Xxxxx Xxxxxxx shall cooperate with each other, and
use commercially reasonable efforts to take or cause to be taken all appropriate
actions required of such Party, and to do or cause to be done all things
necessary or appropriate to effectuate the provisions and purposes of this
Agreement and the transactions contemplated hereby, including the execution of
any additional documents or instruments of any kind, the obtaining of consents
which may be reasonably necessary or appropriate to carry out any of the
provisions hereof, and the taking of all such other actions as such Party may
reasonably be requested to take by the other Party from time to time consistent
with the terms of this Agreement; provided however, that nothing herein shall
require Parent to incur any additional premiums or costs with respect to the
Current Parent Policies, Prior Parent Policies or Other Policies.
(b) By way of enumeration of and not of limitation:
(i) each Party shall provide copies of insurance policies (to
the extent that copies are available) or evidence of the existence of insurance
(where actual copies of the policies are not available), to the other to the
extent reasonably required to effectuate the provisions and purposes of this
Agreement;
(ii) each Party shall provide the other with information
reasonably necessary or helpful to either Party in connection with its efforts
to obtain insurance coverage pursuant to and in accordance with the terms of
this Agreement or to purchase new insurance policies, including information
about the relevant portions of prior underwriting submissions, past and current
claims and losses, subject to any confidentiality restrictions regarding such
information, claims and losses;
(iii) each Party shall provide information to the other about
exhaustion of policy limits and amounts applied to the limits of policies or
self-insured retentions or other limits which are discussed in this Agreement
that are potentially applicable to both, and the basis for the application of
such amounts to such limits, so that each Party can monitor the exhaustion of
such limits; and
(iv) subject to Sections 5.2 and 5.3, each Party shall execute
further assignments or allow the other to pursue claims in its name (subject to
appropriate written notice of the fact that it is doing so and a description of
the reasons why it is doing so), including by means of arbitration or
litigation, to the extent necessary or helpful to the other Party's efforts to
obtain insurance coverage to which it is entitled under this Agreement.
5.5. Parent and Xxxxx Xxxxxxx shall reimburse each other for
out-of-pocket costs, expenses and fees, including but not limited to attorneys'
fees, reasonably incurred in connection with providing cooperation and
assistance to the other pursuant to Section 5.4. Where particular costs, expense
or fees are expected to exceed $10,000, Parent and Xxxxx Xxxxxxx shall use
commercially reasonable efforts to provide estimates of such costs, expenses or
fees to each other prior to the time that they are incurred.
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5.6. In the event of any arbitration or litigation with any insurers
concerning any Current Parent Policy, Prior Parent Policy or Other Policy that
potentially provides coverage for both Parent Liabilities and Xxxxx Xxxxxxx
Liabilities (as determined in good faith by the Party which is initiating or the
subject to such arbitration or litigation), Parent and Xxxxx Xxxxxxx shall
provide prompt written notice to each other of the initiation of such
arbitration or litigation. In the event that such an arbitration or litigation
is initiated by Parent or Xxxxx Xxxxxxx, each Party shall notify the other in
writing at least 60 days prior to the initiation of such proceeding (unless it
is not reasonably possible to do so without prejudicing the effort of such Party
to obtain coverage). The Party receiving any such notice pursuant to this
Section 5.6 shall preserve the confidentiality of that information and use it
for no purpose other than conferring with the other Party and, subject to
Section 5.2, considering whether or not it should join that proceeding as a
party or an amicus, or institute another proceeding against one or more insurers
in the same or some different forum at some time after the first proceeding has
been initiated.
5.7. With respect to the application of the first come/first served
principles set forth in Sections 3.3 and 4.5, Parent and the Parent Group, and
Xxxxx Xxxxxxx and the Xxxxx Xxxxxxx Group, shall act in good faith and avoid
taking any actions for the purpose or with the intention of accelerating or
delaying claims payments or losses in order to obtain some advantage with
respect to the exhaustion of applicable limits. In addition, Xxxxx Xxxxxxx and
the Xxxxx Xxxxxxx Group shall not enter into any written settlement agreement
with any insurer that has the effect of reducing limits that would otherwise be
potentially available under this Agreement to Parent or the Parent Group without
first giving Parent at least 60 days advance written notice of its intention to
enter into such settlement accompanied by a copy of the proposed settlement so
that the Parent may have an opportunity to consider the impact of such proposed
settlement on its interests. Parent and Xxxxx Xxxxxxx agree to consult with each
other and negotiate in good faith about any such impact.
5.8. Notwithstanding anything in this Agreement to the contrary
(including Section 5.7), neither Parent nor any member of the Parent Group shall
have any right to provide any release under a Current Parent Policy, a Prior
Parent Policy or any Other Policy with respect to any rights that Xxxxx Xxxxxxx
or any member of the Xxxxx Xxxxxxx Group may have under that policy under this
Agreement, without the prior written consent of Xxxxx Xxxxxxx.
5.9. Notwithstanding anything in this Agreement to the contrary
(including Section 5.7), neither Xxxxx Xxxxxxx nor any member of the Xxxxx
Xxxxxxx Group shall have any right to provide any release under a Current Parent
Policy, a Prior Parent Policy or an Other Policy with respect to any rights that
Parent or any member of the Parent Group may have under that policy under this
Agreement, without the prior written consent of Parent.
5.10. Parent and Xxxxx Xxxxxxx agree to preserve the confidentiality of
any information relating to claims and losses, and efforts to recover insurance
therefore in
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accordance with the provisions of Section 6.8 of the Separation and Distribution
Agreement.
ARTICLE VI -- Certain Specified Liabilities
6.1. Xxxxx Xxxxxxx has entered into a settlement agreement (the "Global
Settlement") with certain federal and state regulators relating to alleged
conflicts of interest or other allegedly wrongful acts involving relationships
between securities analysis and investment banking services. In the event that
the Global Settlement is approved, Xxxxx Xxxxxxx will become obligated to pay
(a) fines and penalties in the amount of $12.5 million; (b) a restitution
payment in the amount of $12.5 million; and (c) $7.5 million for the cost of
independent market research. Xxxxx Xxxxxxx has established a reserve on its
books in the amount of $32.5 million to pay these amounts. In connection with
the Contribution, Parent has contributed capital to Xxxxx Xxxxxxx to enable it
to establish this reserve. In the event that any insurer provides coverage to
Parent, any Parent Subsidiary, Xxxxx Xxxxxxx or any Xxxxx Xxxxxxx Subsidiary for
all or any part of this $32.5 million amount or any defense costs paid in
connection with the investigation conducted by the regulators or the negotiation
of a settlement with the regulators, the amount of such insurance proceeds, net
of the costs, expenses and fees (including attorneys' fees) actually incurred in
connection with the recovery of such proceeds, shall be allocated as specified
in Sections 6.3 and 6.4.
6.2. In addition to the claims described in Section 6.1, the Parties
have agreed that in the event insurance recoveries are received or paid out in
respect of any Specified Liabilities (as defined in the Separation and
Distribution Agreement), the Parties shall allocate such recoveries (net of the
costs, expenses and fees (including attorneys' fees) actually incurred in
connection with the recovery of such proceeds) in accordance with Section 6.3.
6.3. Except as provided in Section 6.4, the insurance proceeds received
with respect to (1) the Global Settlement, (2) any defense costs paid in
connection with the investigation conducted by the regulators or the negotiation
of a settlement with the regulators, or (3) any Specified Liabilities, in each
case, net of any costs, expenses and fees (including attorneys' fees) actually
incurred in connection with the recovery of such proceeds, shall be allocated as
follows:
(a) Parent and Xxxxx Xxxxxxx shall first be reimbursed for any
out-of-pocket defense costs that each actually incurred in connection with such
Specified Liabilities (if the insurance recoveries with respect to Global
Settlement and Specified Liabilities are not sufficient to reimburse each for
the full amount of its out-of-pocket defense costs, the recoveries shall be
shared in proportion to the amount of out-of-pocket defense costs actually paid
by each with respect to the Specified Liabilities);
(b) to the extent that there are any remaining insurance recoveries
after Parent and Xxxxx Xxxxxxx have been reimbursed for their defense costs
pursuant to subsection (a), such amounts shall next be used to reimburse Xxxxx
Xxxxxxx for any settlement or judgment amounts that it has paid in connection
with Specified Liabilities
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that were not indemnified by Parent as a result of exhaustion of the $17.5
million maximum limit on Parent's indemnification obligation for such
liabilities; and
(c) to the extent that there are any remaining insurance recoveries
after allocations have been made pursuant to subsections (a) and (b) above, such
remainder shall be allocated and belong to Parent. Xxxxx Xxxxxxx shall, promptly
upon the receipt of any payment of all or any portion of such remainder, pay
such amount over to Parent. Until making such payment to Parent, Xxxxx Xxxxxxx
shall hold such amounts in trust for Parent and not for its own account.
6.4. In the event of a Change in Control of Xxxxx Xxxxxxx, any net
insurance proceeds received with respect to the Global Settlement that have not
already been paid to or on behalf Xxxxx Xxxxxxx pursuant to section 6.3 as of
the effective date of such Change in Control shall belong to Parent, and Xxxxx
Xxxxxxx shall have no right to receive or benefit from any portion of such
proceeds, including as an element in the calculations set forth in Section 6.3.
Xxxxx Xxxxxxx shall, promptly upon the receipt of any payment of or receipt of
the benefit of any payment on its behalf of all or any portion of such net
insurance proceeds, pay such amount over to Parent. Until making such payment to
Parent, Xxxxx Xxxxxxx shall hold such amounts in trust for Parent and not for
its own account.
ARTICLE VII- Other Provisions
7.1. NOTICES. All notices, requests and other communications to any
Party hereunder shall be in writing (including facsimile transmission) and shall
be given (i) by personal delivery to the appropriate address as set forth below
(or at such other address for the Party as shall have been previously specified
in writing to the other Party), (ii) by reliable overnight courier service (with
confirmation) to the appropriate address as set forth below (or at such other
address for the Party as shall have been previously specified in writing to the
other Party), or (iii) by facsimile transmission (with confirmation) to the
appropriate facsimile number set forth below (or at such other facsimile number
for the Party as shall have been previously specified in writing to the other
Party) with follow-up copy by reliable overnight courier service the next
Business Day:
(a) if to Xxxxx Xxxxxxx, to:
Xxxxx Xxxxxxx Companies
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
(b) if to Parent, to:
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U.S. Bancorp
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m.
(Minneapolis, Minnesota time) and such day is a Business Day in the place of
receipt. Otherwise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding Business Day in the place of
receipt.
7.2. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the Parties.
Except as otherwise provided in this Agreement, any failure of any of the
parties to comply with any obligation, covenant, agreement or condition herein
may be waived by the Party entitled to the benefits thereof only by a written
instrument signed by the Party granting such waiver, but such waiver or the
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. This Agreement shall not be
considered as an attempted assignment of any policy of insurance or as a
contract of insurance and shall not be construed to waive any right or remedy of
any member of the Parent Group in respect of any insurance policy or any other
contract or policy of insurance.
7.3. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same agreement.
7.4. ENTIRE AGREEMENT. The Separation and Distribution Agreement, this
Agreement, the other Ancillary Agreement and the Schedules hereto constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof, and supersede and cancel all prior agreements, negotiations,
correspondence, undertakings, understandings and communications of the parties,
oral and written, with respect to the subject matter hereof.
7.5. ASSIGNMENT. This Agreement may not be assigned by either Party
without the written consent of the other Party and any attempted assignment
shall be null and void.
7.6. BINDING NATURE; THIRD-PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
respective successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other Person or Persons any
rights, benefits or remedies of any nature whatsoever under or by reason of this
Agreement.
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7.7. SEVERABILITY. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement shall
not affect the validity or enforceability of this Agreement or of any other term
hereof, which shall remain in full force and effect, for so long as the economic
or legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any Party. If it is ever held that
any restriction hereunder is too broad to permit enforcement of such restriction
to its fullest extent, each Party agrees that such restriction may be enforced
to the maximum extent permitted by applicable law, and each Party hereby
consents and agrees that such scope may be judicially modified accordingly in
any proceeding brought to enforce such restriction. The Parties acknowledge that
they intend to allocate financial obligations without violating any laws
regarding insurance, self-insurance or other financial responsibility, or
breaching any terms, conditions or provisions of any insurance policies. If it
is determined that any action undertaken pursuant to the Separation and
Distribution Agreement, this Agreement or any other Ancillary Agreement is
violative of any insurance, self-insurance or related financial responsibility
law or regulation or any term, condition or provision of any insurance policy,
the parties agree to work together to do whatever is necessary to comply with
such law or regulation or insurance policy term condition or provision while
trying to accomplish, as much as possible, the allocation of financial
obligations as intended in the Separation and Distribution Agreement, this
Agreement and any other Ancillary Agreement.
7.8. CHOICE OF LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to
principles of conflicts or choice of laws, or any other law that would make the
laws of any jurisdiction other than Delaware applicable.
7.9. REIMBURSEMENT. In order to obtain reimbursement of amounts due
under this Agreement, Parent or Xxxxx Xxxxxxx, as the case may be, shall send a
written request for such reimbursement in accordance with Section 7.1, together
with such information as is reasonably required to support its request for
reimbursement; provided, however, that to the extent this Agreement contemplates
the automatic reimbursement of or payment with respect to certain matters, no
notice shall be required. Payment shall be due 30 days after receipt of such
request and supporting information or promptly if no notice is required. If
there are questions or disputes about certain amounts for which reimbursement is
requested, payment should be made on a timely basis with respect to other
amounts. With respect to all amounts that are ultimately determined to be owed
under this Agreement -- either by agreement or through litigation -- but that
were not paid in full within 30 days after the date of receipt of the original
request for reimbursement and supporting information or promptly if no notice is
required, interest at the prime rate published by Citibank N.A. from time to
time, compounded monthly, shall be owed for the period beginning from 30 days
after the date of receipt of the original request for reimbursement and
supporting information, or [10] days if no notice is required until the date of
payment.
7.10. RIGHT OF SETOFF. With respect only to amounts that may become due
pursuant to and in accordance with the terms of this Agreement, Parent and the
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Parent Subsidiaries may deduct from, set off, hold back or otherwise reduce in
any manner whatsoever against any such amounts Parent or the Parent Subsidiaries
or their Affiliates may owe to or hold for the benefit of Xxxxx Xxxxxxx, the
Xxxxx Xxxxxxx Subsidiaries, or their respective Affiliates any such amounts owed
by Xxxxx Xxxxxxx or the Xxxxx Xxxxxxx Subsidiaries or their respective
Affiliates to Parent or the Parent Subsidiaries or their respective Affiliates.
In no event shall Parent and the Parent Subsidiaries deduct from, set off, hold
back or otherwise reduce any such amounts from accounts of, or funds on deposit,
of Xxxxx Xxxxxxx, the Xxxxx Xxxxxxx Subsidiaries, or their respective Affiliates
with Parent and the Parent Subsidiaries.
7.11. REPRESENTATIONS. Parent represents on behalf of itself and each
other member of the Parent Group and Xxxxx Xxxxxxx represents on behalf of
itself and each other member of the Xxxxx Xxxxxxx Group as follows:
(a) each such Person has the requisite corporate or other power and
authority and has taken all corporate or other action necessary in order to
execute, deliver and perform this Agreement; and
(b) this Agreement has been duly executed and delivered by such Person
and constitutes a valid and binding agreement of it enforceable in
accordance with the terms thereof (assuming the due execution and delivery
thereof by the other Party).
7.12. NO LIABILITY. Xxxxx Xxxxxxx does hereby, for itself and as agent
for each other member of the Xxxxx Xxxxxxx Group, agree that no member of the
Parent Group or any Parent Indemnitee shall have any Liability whatsoever as a
result of the insurance policies and practices of Parent and its Subsidiaries as
in effect at any time prior to the Distribution Time, including as a result of
the level or scope of any such insurance, the creditworthiness of any insurance
carrier, the terms and conditions of any policy, the adequacy or timeliness of
any notice to any insurance carrier with respect to any claim or potential claim
or otherwise.
7.13. HEADINGS. The table of contents, and the article and other
headings contained in this Agreement are inserted for convenience of reference
only and shall not affect in any way the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
U.S. Bancorp
By:
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Name:
Title:
Xxxxx Xxxxxxx Companies
By:
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Name:
Title:
