Schedule B
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated
as of August 18, 1998, by and among Folksam Omsesidig Sakforsakring, an entity
organized under the laws of Sweden ("Folksam"), Samvirke Skadeforsikring AS, a
corporation organized under the laws of the Kingdom of Norway ("Samvirke" and,
collectively with Folksam, the "Assignors") and Fund American Enterprises
Holdings, Inc., a Delaware corporation (the "Assignee").
WHEREAS, the Assignors and the Assignee are parties to that
certain Stock Purchase Agreement, dated as of July 1, 1998, by and among the
Assignee, White Mountains Holdings, Inc., a New Hampshire corporation ("White
Mountains"), Assignors and each of the other parties listed on Schedule A to
such Stock Purchase Agreement (the "Stock Purchase Agreement") relating to
certain shares of Common Stock of Folksamerica Holding Company, Inc., a
corporation organized under the laws of the State of New York, owned by Sellers;
and
WHEREAS, as contemplated by Section 4.2 of the Stock Purchase
Agreement, from and after the Closing, the Assignors have agreed to assign to
the Assignee, and the Assignee has agreed to assume, all of the Assignor's
obligations and liabilities in, to and under the Swedbank loan guarantees,
copies of which attached are hereto (the "Swedbank Loan Guaratees"), to the same
extent as if the Assignee had been an original party to the Swedbank Loan
Guarantees;
NOW, THEREFORE, in consideration of the foregoing, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, each intending to be legally bound, hereby
agree as follows:
Section 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Stock Purchase Agreement.
Section 2. Assignment of Obligations and Liabilities under the
Swedbank Loan Guarantees. The Assignors hereby assign, transfer and convey to
the Assignee, and its successors and permitted assigns, all of their duties,
obligations and liabilities in, to and under the Swedbank Loan Guarantees. From
and after the date hereof, and as between the Assignors and the Assignee, the
Assignee shall be deemed to be the guarantor under each of the Swedbank Loan
Guarantees and shall be obligated to comply with all of the covenants,
agreements, obligations, undertakings and conditions of the Swedbank Loan
Guarantees as if the Assignee were an original party thereto.
Section 3. Assumption of Swedbank Loan Guarantees. The
Assignee hereby accepts the assignment set forth in Section 2 and
unconditionally assumes all of the covenants, agreements, obligations and
undertakings of the Assignors in, to and under the Swedbank Loan Guarantees. The
Assignee hereby agrees to be bound by all of the terms, covenants and conditions
of the Swedbank Loan Guarantees and accepts all of the Assignors' duties,
obligations and liabilities thereunder.
Section 4. Indemnification. The Assignee agrees to indemnify
and hold harmless the Assignors and each of their respective affiliates,
successors and assigns from and against any and all losses, damages,
deficiencies or liabilities caused by, resulting or arising from or otherwise
relating to (a) any failure by the Assignee to perform or otherwise fulfill or
comply with any undertaking or other agreement or obligation to be performed,
fulfilled or complied with by the Assignee hereunder or under the Swedbank Loan
Guarantees and (b) any and all actions, suits, proceedings, claims, liabilities,
demands, assessments, judgments, costs and expenses, including reasonable
attorneys' fees, costs and expenses incident to any of the foregoing or such
indemnification (including attorney's fees, costs and expenses incurred in
connection with the enforcement by Assignors and their respective affiliates,
successors, and assigns of the obligations of Assignee hereunder).
Section 5. Governing Law. This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of New York
(without regard to principles of conflicts of laws thereof), including all
matters of construction, validity and performance.
Section 6. Counterparts. This Agreement may be executed in one
or more counterparts and each such counterpart shall be deemed to be an
original.
Section 7. Parties in Interest. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, express or implied,
is intended to confer upon any person not a party to this Agreement any rights
or remedies under or by reason of this Agreement.
Section 8. Entire Agreement. This Agreement, together with the
Stock Purchase Agreement, contains the entire understanding of the parties
hereto with respect to the subject matter contained herein, and supersedes and
cancels all prior agreements, negotiations, correspondence, undertakings and
communications of the parties, oral or written, respecting such subject matter.
Section 9. Service and Jurisdiction. Any action, suit or
proceeding arising out of or relating to this Agreement may be instituted in any
United States Federal court or any state court located in New York, New York,
and each of the parties hereto agrees not to assert, by way of motion, as a
defense or otherwise, in any such action, suit or proceeding, any claim that it
may now or hereafter have that it is not subject personally to the jurisdiction
of such court, that the action, suit or proceeding is brought in an inconvenient
forum, that the venue of the action, suit or proceeding is improper or that this
Agreement or the subject matter hereof may not be enforced in or by such court.
Each of the parties hereto irrevocably submits to the jurisdiction of such court
in any such action, suit or proceeding, and irrevocably agrees to be bound by
any final
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judgment rendered thereby in connection with this Agreement from which no appeal
has been taken or is available. Each of the parties hereto hereby appoints CT
Corporation System (or counsel reasonably acceptable to the parties hereto) at
its principal place of business in New York, New York, or its office at such
other address in New York, New York as it may furnish to the parties, as its
authorized agent to accept and acknowledge on its behalf service of any and all
process that may be served in any such action, suit or proceeding. Any and all
service of process and any other notice in any such action, suit or proceeding
shall be effective against any other party hereto if given personally or by
registered or certified mail, returned receipt requested, or by any other means
of mail that requires a signed receipt, postage prepaid, mailed to such party as
provided in the Stock Purchase Agreement, or by personal service on such
authorized agent with a copy of such process mailed to such party by first class
mail or registered or certified mail, postage prepaid and return receipt
requested. Nothing contained herein shall be deemed to affect the right of any
party hereto to serve process in any manner permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
FUND AMERICAN ENTERPRISES
HOLDINGS, INC.
By:
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Name:
Title:
FOLKSAM MUTUAL GENERAL INSURANCE
COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
SAMVIRKE SKADEFORSIKRING AS
By:
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Name:
Title:
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