Exhibit 10.44
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this "Agreement"), dated as of
the IPO Date (as defined below), between XL Capital Assurance Inc., a New York
insurer ("XLCA") and XL America, Inc., a Delaware corporation ("XL America").
W I T N E S S E T H:
WHEREAS, XLCA and XL America are both indirect wholly-owned
subsidiaries of XL Capital Ltd, a Cayman Islands corporation ("XL Capital");
WHEREAS, the stock of XLCA 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, XLCA issued a Financial Guaranty Insurance Policy
(the "Policy"), effective [ * ] (the "Note");
WHEREAS, in connection with the satisfaction of a claim under
the Policy, XLCA acquired the Note that XLCA had insured;
WHEREAS, the Note was secured by a pool of loans made to
medical providers;
WHEREAS, the Note was partially paid down with a non-cash
distribution of the loans made to one of the medical providers, [ * ];
WHEREAS, pursuant to the [ * ], [ * ] loans were extinguished
and XLCA received [ * ] (such stock, including any other instruments issued or
to be issued in exchange for any thereof in connection with further
reorganizations of [ * ], "Preferred Stock");
WHEREAS, XLCA will value the Note and Preferred Stock as of
June 30, 2006 ("Valuation Date") by a valuation to be done no later than the
closing date of the IPO (the Guaranteed Carried Values");
WHEREAS, to facilitate the IPO, XL America is prepared to
indemnify XLCA in respect of (i) diminution subsequent to Valuation Date of the
Guaranteed Carried Values of the Note and/or Preferred Stock; (ii) certain
potential liabilities under the Policy, and (iii) existing or future litigation,
including without limitation loss adjustment expenses, pertaining to the Policy,
the Note and/or Preferred Stock.
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:
1. INDEMNIFICATION AGAINST DIMINUTION IN VALUE. Subject
to the terms and conditions contained herein:
(a) XL America hereby agrees to indemnify and hold
harmless XLCA, its subsidiaries, affiliates, successors and assigns
from and against any diminution in the value of the Note and/or the
Preferred Stock below their respective Guaranteed Carried Values as may
be determined to have occurred after Valuation Date pursuant to a
written valuation done as of the end of the relevant calendar quarter
and notified to XL America in writing. The valuation shall be conducted
by XLCA in connection with preparation of its quarterly financial
statements in its reasonable discretion in accordance with generally
accepted accounting principles consistently applied and, where
applicable, based upon information from its professional advisors)
(b) XL America agrees, no later than thirty (30) days
after receipt of a written demand after the close of any quarter, to be
accompanied by a copy of the written valuation, to pay to XLCA the
amounts of any net diminutions from the prior quarter in the estimated
values of the Note and/or the Preferred Stock (the "Interim Carried
Value") to the extent such quarter's Interim Carried Value is less than
the least of the Guaranteed Carried Value or any prior quarter's
Interim Carried Value.
(c) In the event of appreciation in the Interim Carried
Value of the Note and/or Preferred Stock subsequent to any payment
pursuant to clause (b) above, XLCA will not be obligated to return any
amount previously received from XL America pursuant to such clause (b)
unless and until thirty (30) days after XLCA or any affiliate thereof
receives cash or other readily marketable consideration (the amount of
which shall be the "Sale Amount") for the conveyance of the Note and/or
the Preferred Stock, as the case may be, to an unaffiliated person and
then XLCA will refund amounts previously received from XL America
pursuant to such clause (b) only to the extent of the lesser of (i) the
aggregate of the amounts paid in respect of diminution in Interim
Carried Value by XL America to XLCA under clause (b), or (ii) the
amount by which the Sale Amount received by XLCA exceeds the difference
between the Guaranteed Carried Value and aggregate of the amounts paid
in respect of diminution of value thereof by XL America to XLCA under
clause (b). XLCA also shall pay XL America interest on any such amount
at the simple annual interest rate of 5% running from the date of the
payment being refunded (allocating the payments under clause (b) to the
refund on a LIFO basis).
(d) If upon the conveyance of the Note and/or the
Preferred Stock, as the case may be, to an unaffiliated person (i) the
Sale Amount XLCA receives is less than (ii) the lowest Interim Carried
Value for any prior quarter, XL America shall no later than thirty (30)
days after demand pay XLCA the difference between (i) and (ii), without
interest.
2. INDEMNIFICATION AGAINST LIABILITIES. Subject to the
terms and conditions contained herein, XL America hereby agrees to indemnify and
hold harmless XLCA, its subsidiaries, affiliates, successors and assigns and
their respective officers, directors and agents from and against any and all
losses, liabilities, claims, damages, costs, penalties, fines, and expenses
(including, without limitation, reasonable attorneys' fees and any and all
expenses reasonably incurred in investigating, preparing or defending any
action, suit or proceeding, commenced or threatened and for consultants and
advisors regarding preservation of value of the Note and/or Preferred Stock,
collectively, "Loss Adjustment Expenses") of any kind and nature incurred after
the date hereof (collectively, "Losses") which relate to or arise out of any
past, existing and/or future claim, action, suit or proceeding (i) arising
under, out of or relating to the
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Policy, including, without limitation, any recovery from any holder of the Note
of any payment made pursuant thereto on the basis that such payment constituted
an avoidable preference, and/or (ii) which relates to the Note and/or Preferred
Stock, including, in each case, without limitation, [ * ] ("Delaware
Proceeding"); PROVIDED, HOWEVER, such indemnity shall not apply to Loss
Adjustment Expenses except to the extent that such Loss Adjustment Expenses
exceed the amount of XLCA's reserve in respect thereof at the Valuation Date (in
the amount of $[ * ]).
3. INDEMNIFICATION PROCEDURE AS RESPECTS LIABILITIES.
(a) XL America shall pay to XLCA within thirty days upon
demand, which demand shall itemize the Losses for which indemnity is
claimed, any and all Losses paid by XLCA. If XL America shall dispute
the amount owing by it as set forth in the demand, XL America shall
nevertheless pay the amount in dispute to XLCA pending resolution of
the dispute as provided in this Agreement.
(b) Promptly after receipt by XLCA of notice of any
complaint or the commencement of any action or proceeding with respect
to which indemnification may be sought hereunder, XLCA will notify XL
America of such complaint or of the commencement of such action or
proceeding. XL America may, at its discretion, assume the defense of
any such action or proceeding (including, without limitation, the
Delaware Proceeding), including the employment of counsel and the
payment of the fees and disbursements of such counsel. In the event,
however, that (i) XL America elects not to assume the defense of the
action or proceeding in a timely manner or (ii) the nature of any claim
presents a conflict of interest between XLCA and XL America, then XLCA
may assume and control its own defense, and XL America shall be liable
for all reasonable costs and expenses paid or incurred by XLCA in
connection therewith, and XLCA shall provide XL America with
appropriate written documentation of such costs and expenses. In any
action or proceeding with respect to which indemnification may be
sought hereunder, XLCA or XL America, whichever is not assuming the
defense of such action, as the case may be, will have the right to
participate in such litigation and to retain its own counsel at such
party's own expense. XLCA or XL America, as the case may be, shall at
all times use reasonable efforts to keep XL America or XLCA, as the
case may be, reasonably apprised of the status of the defense of any
claim the defense of which they are maintaining.
(c) XLCA may not settle or compromise any claim with
respect to which indemnification is being sought hereunder without the
prior written consent of XL America, which consent shall not be
unreasonably withheld. XL America may not, without the prior written
consent of XLCA, settle or compromise or consent to the entry of any
judgment in any claim with respect to which indemnification is being
sought hereunder unless such settlement, compromise or consent includes
an unconditional release of XLCA from all liability arising out of such
claim.
4. NON-INURING REINSURANCE. It is agreed that the
reinsurance provided by XL Financial Assurance Ltd. is not inuring (beyond the
amount of any reduction to XLCA's Loss Adjustment Expense net reserve at the
Valuation Date) , and XLCA shall be indemnified hereunder on a gross basis and
not just in respect of its net retained interest (net of any reduction to XLCA's
Loss Adjustment Expense reserve at the Valuation Date).
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5. REPRESENTATIONS AND WARRANTIES OF XL AMERICA. XL
America hereby represents and warrants to XLCA that this Agreement has been duly
authorized, executed and delivered by XL America and is the legal, valid and
binding agreement of XL America, enforceable against XL America in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting the rights and remedies of
creditors generally and to general principles of equity (regardless of whether
in equity or at law).
6. REPRESENTATIONS AND WARRANTIES OF XLCA. XLCA hereby
represents and warrants to XL America that this Agreement has been duly
authorized, executed and delivered by XLCA, and is the legal, valid and binding
agreement of XLCA, enforceable against XLCA in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting the rights and remedies of creditors
generally and to general principles of equity (regardless of whether in equity
or at law).
7. NOTICES. Unless specified otherwise in this
Agreement, all requests, notices or other communications hereunder shall be in
writing and shall be given or made (and shall be deemed to have been duly given
or made upon receipt) by delivery in person, by courier service, telecopy, or
electronic transmission, if sent via facsimile (with confirmation of receipt
without error), to the respective Parties at the following addresses:
(a) if to XLCA:
XL Capital Assurance Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
(b) if to XL America:
XL America, Inc.
Xxxxxxx Xxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
8. MISCELLANEOUS. Nothing in this Agreement is intended
to or shall confer upon anyone other than the parties hereto any legal or
equitable right, remedy or claim. This Agreement shall be governed by, and its
provisions construed in accordance with, the laws of the State of New York
applicable to contracts made and to be wholly performed within such state and
may be modified only in writing signed by each of the parties hereto. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, and all such counterparts shall constitute
one and the same instrument. Paragraph headings contained in this Agreement are
solely for convenience of reference and shall not affect the meaning or
interpretation of any term or provision hereof.
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9. ARBITRATION
(a) Any dispute or claim arising out of or relating to
this Agreement, including its formation and validity, shall be referred
to arbitration. Arbitration shall be initiated by the delivery, by
mail, facsimile, or other reliable means, of a written demand for
arbitration by one party to the other. The arbitration shall be held in
New York or such other place as the parties may mutually agree.
(b) Arbitration shall be conducted before a three-person
Arbitration Panel appointed as follows. Each party shall appoint one
arbitrator, and the two arbitrators so appointed shall then appoint an
impartial Umpire before proceeding. If either party fails to appoint an
arbitrator within thirty (30) days after it receives a written request
by the other party to do so, the other party may appoint an arbitrator
for it. Should the two party-appointed arbitrators fail to choose an
Umpire within thirty (30) days of the appointment of the second
arbitrator, each arbitrator shall propose three names, of whom the
other shall strike two, and the decision shall be made from the
remaining two by drawing lots. The arbitrators and Umpire shall be
present or former executives or officers of insurance or reinsurance
companies or shall be arbitrators certified by XXXXX-U.S. The
arbitrators and Umpire shall not be under the control of either party,
and shall have no financial interest in the outcome of the arbitration.
(c) The decision of a majority of the Arbitration Panel
shall be final and binding, except to the extent otherwise provided in
the Federal Arbitration Act. The Arbitration Panel shall render its
award in writing. Judgment upon the award may be entered in any court
having jurisdiction, pursuant to the Federal Arbitration Act. Unless
the Arbitration Panel orders otherwise, each party shall pay: (1) the
fees and expenses of its own arbitrator, and (2) an equal share of the
fees and expenses of the Umpire and of the other expenses of the
arbitration.
10. SEVERABILITY. If any provision of this Agreement or
the application of any such provision to any person or circumstance shall be
held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
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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 CAPITAL ASSURANCE INC.
By:
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Name:
Title:
XL AMERICA, INC.
By:
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Name:
Title:
